Hospital Administration and their liability in the cases of Negligence

In India doctors, nurses and anyone working in the ambit of medical care are considered to be gods. They are responsible for taking good care of a patient and ensuring that his/her medical needs are fulfilled. Although it is not always possible for the doctor to save a patient’s life, it is generally expected from the doctor to always have the patient’s best interest in his/her mind. Thus, to fulfil the said promise,  it is imperative on part of the doctors and medical staff to carry out a thorough investigation and collect all the information regarding the patients’ health. ‘Informed consent is imperative and should be taken from the patient unless there is an emergency.  

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Consumer Law and Healthcare services

By Nevin Clinton, Flywork.io Team, Flywork.io.

Medical or health care services form an indispensable part of one's life, especially now during this worldwide health crisis. Let's revisit the Consumer Protection Act 2019 and see what could exclusion of healthcare under the new Act mean for consumers of medical treatments and services.

    The Consumer Protection Act, 1986 which had been in force for more than 3 decades was repealed by the Consumer Protection Act, 2019 (hereinafter referred to as CPA 2019). The new act sought to replace those parts of the former act that were archaic while also bringing in a plethora of new provisions. Various objectives like the establishment of the Consumer Protection Authority, provisions on mediation, modern methods of filing of cases, hearings through video-conferencing, changing of pecuniary jurisdiction, and more were fulfilled and brought in. Among these changes, one other aspect that was pondered upon was the inclusion of ‘healthcare’ under the definition of ‘service’ which was present in earlier Bills presented before the Parliament. In the end, the inclusion was decided against from being implemented.

    This exclusion isn’t a particularly groundbreaking one as such, but it still raises a lot of important questions. The reason why it isn’t groundbreaking is that the Act mentions that the definition ‘includes but is not limited to the terms that follow. And yet, it reflects the thinking of the lawmakers even as questions raised over how the issue of healthcare and medical negligence should be dealt with, continues to loom large. Before looking at the implications, it is noteworthy that ‘healthcare’ was never a part of consumer laws in India. It was only a potential change that seemed set to be made was not made.

Some Important Case Laws:

    Now, it is essential to get some background on the issue of whether medical professionals have been covered under the CPA, 2019 through past case laws. The landmark case in this regard is Indian Medical Association v. V.P. Shantha where it was held that despite the fact that ‘healthcare’ is not included expressly under the definition of ‘service’, a medical practitioner’s consultation, diagnosis, and treatment would fall under it. In Jacob Mathew v. the State of Punjab, the same was reiterated and it was held that the degree of negligence on the part of the medical practitioner should be gross to be considered criminal. In Maharaja Agrasen Hospital v. Master Rishabh Sharma, the Supreme Court held that there was a vicarious liability on the part of the hospital as well, in cases of medical negligence. In none of these cases or any other case has there been a verdict stating that ‘healthcare’ does not fall under the definition of ‘service’ or that it should not be governed by the Consumer Protection Act.

Doctors are susceptible to harassment

    It is noteworthy that medical professionals have not wanted to be governed by consumer laws and have wanted ‘healthcare’ to be expressly excluded from the act. And that is not what they’ve got as there is no express exclusion but a mere absence. So what are the implications? Firstly, cases of medical negligence can be governed by the CPA, 2019 as it has been in the past by the 1986 Act. So, doctors are still susceptible to harassment and hassles that could be caused by having a legal suit filed against them. Including medical negligence under ‘services’ could lead to frivolous lawsuits being filed. This is exactly why doctors have been opposed to the fact that ‘healthcare’ was not expressly said to be excluded.

Patients’ rights are important too!

    But there is another side of the coin to consider. Protection of patients is of paramount importance and doctors can’t afford to be too casual in rendering their services. Of course, patients have the option of invoking Section 304A of the Indian Penal Code under which a case for death caused by negligence can be filed or deprivation of the right to life under the Constitution of India. But having the protection under the CPA helps patients hold doctors accountable wherever necessary and not only in cases of death or grave injury. 

Hence, there is a need to strike a balance between protecting patients and safeguarding doctors from harassment and hassles. A clear explanation through regulations or guidelines can go a long way in ensuring the same instead of leaving every aspect of medical negligence to be dealt with on a case-to-case basis. If the government does so, not only the courts and consumer commissions but also the medical practitioners and patients will have much-needed relief from the uncertainty that is prevalent at present.

   Let the qualified curated professionals at Flywork.io assist you to resolve any legal and allied issues. For more details visit us at Flywork.io.

Do celebrities owe us a duty for the claims they make in advertisements?

Do celebrities owe us a duty for the claims they make in advertisements?

The favorite midnight snack of many, Nestlé’s Maggi has been banned by the Food Safety and Standards Authority of India (FSSAI) because of problems associated with the quality and labeling of the product. The notices issued to various celebrities who had been endorsing Maggi noodles and the orders for lodging FIR against them have reignited an extremely important legal debate concerning the liability of celebrities for the product endorsements they make. This article discusses the duty of celebrities for their endorsements, relevant laws in India and the precedents in some other countries.

 

Making a case for celebrity endorsement

There are many questions which crop up when we seek to make celebrities liable for their claims in advertisements. First among them being do the people actually believe in the claims celebrities make? Are the products bought because of endorsements or are they bought first and endorsements only reassure the consumer? Well, there is no straitjacket formula to these questions unlike believed by some. It certainly depends on “the context, the product or service endorsed, the expertise of the celebrity in that area, the mass appeal of the celebrity and the reliance of individual consumer”. This brings us to a more nuanced argument. Does the fact that celebrities have a right to publicity which they harness economically while advertising, impose a duty on them to not use this right in a manner detrimental to the general public? Or since the celebrities have a right to publicity, the audience has a reciprocal right of reliance? After all, unlike the movies, the fact that the plot and characters are fictional is never reflected/shown in an advertisement. In fact the representations made by the likes of Ms. Padukone are a “cause in fact” of the pecuniary loss to the consumers to the extent of the difference between an effective gym equipment for losing one’s weight and the Kellogg’s Special K. Similar arguments can be made for every misleading advertisement. Some make a superficial distinction between the celebrities giving personal testimonies versus the celebrity playing a role in the advertisement, for instance Ms. Dixit is playing the role of a mother in the Maggi advertisement. It is argued that a celebrity should be liable only when (s)he is making a personal testimony and not when (s)he is playing a role of another. However, it is extremely difficult to accept this difference. Audience generally does not think this way when relying upon the claims. Further, as stated above, unlike films, the fictional and impersonalized role is not emphasized in advertisements, thus making no space for this argument. Another argument put forth by the people disagreeing with making celebrities liable is based on the fact that celebrities have to no way in which they can identify the truthfulness of the statement which they are made to say in the testimonial by the ad-gurus. However a simple counter to this is requiring celebrities to test, try and experiment the product to find out. Similar has been legislated upon in various countries as we will see in the next section. While this may sound a little far-fetched in the case of Maggi noodles, after all, checking the amount of lead is the duty of the FSSAI and not Ms. Dixit’s and every single pack can certainly not be checked by the celebrities, yet celebrities can certainly be made liable for making sweeping claims like a person drinking Drink X can grow twice as taller as (s)he would grow drinking Drink Y (the ad for the health drink Complan). Therefore, there remains a strong case for making celebrities liable.

 

What are our neighbors and partners in trade doing about it?

In the USA, the Federal Trade Commission Guidelines prohibit deceptive and misleading endorsements by celebrities and make celebrities liable for the same. The endorsers are required to reflect their “honest opinions, findings, beliefs, or experience” in the advertisements. In fact, the advertisers can continue to use the endorsements only as long as the advertiser has a good reason to believe that the endorser continues to remain a bona fide user of the endorsed product. In Europe, the celebrities follow a self-imposed code whereby they refrain from endorsing products harmful to the health of the general public like alcohol, medicines etc. Korea on the other hand has an Advertising Self-regulation Institution which issues guidelines with respect to endorsements and reviews the endorsed advertisements making false advertisements a rarity. Among our neighbors, China makes the endorsers jointly liable with the service provider for the harm caused by the product. Pakistan also has laws forbidding false and misleading advertisements, however it is uncertain whether these laws will also include liability of celebrities for their endorsements. The Malaysian Code of Advertising Practice requires that the endorsements or testimonials contained in advertisements should be based on genuine experience of the endorser over a period of time. Malaysia also has special guidelines for “[p]ersons, characters or group who have achieved particular celebrity status with children”. These celebrities are forbidden from promoting food or drinks in a manner that may undermine the need for a healthy diet however the endorsers are not liable for the same since sanctions are in the form of “withholding of advertising space from advertisers and the withdrawal of trading privileges from advertisers/ advertising agencies”. Singapore has similar laws  relating to false advertisements and is also cogitating to put into place specialized guidelines pertaining to children. In Japan on the other hand celebrities participating in false endorsements are made to apologize publicly. This harms the reputation of the endorser decreasing the employment opportunities of these people, forcing celebrities to refrain from making claims with regard to the quality or effectiveness of a product.

 

What is the law in India?

Section 24 of the Food Safety and Standards Act, 2006 puts restrictions on misleading advertisements. It states, that “no person” shall be allowed to engage in misleading representation concerning the “standard, quality, quantity or grade-composition” and “need for, or the usefulness” of a food product. (S)he should not make any statement which “gives to the public any guarantee of the efficacy [of the product] that is not based on an adequate or scientific justification thereof.” Section 53 of the Act describes the penalty for such false advertisements which can extend to ten lakh rupees. This penalty applies to “any person” and hence should ideally include the celebrities; however there is no case law to support this proposition. The Central Consumer Protection Council (CCPC) has also decided to issue specific guidelines to this effect after the MP High Court directed to set up an advertisement monitoring panel as per the Vibha Bhargava Commission. These guidelines if enforced will allow consumers to claim compensation from celebrities for misleading claims made regarding a product, recklessly or with knowledge that the claim is false.

 

Conclusion

The case for celebrity endorsement is a strong one considering the status which is accorded to the claims made by these stars and the money which is used in these endorsements. This has been understood across the world and many countries have laws to the effect of punishing celebrities for misleading claims. Indian laws are also developing in this regard and stars in India are becoming more aware with respect to the duty they owe to their fans. For instance recently Amitabh Bachchan stopped promoting Pepsi after a young girl questioned him as to his reasons for endorsing Pepsi which her teacher had termed as poison.

Law on Sex Determination: consequences of skewed sex ratio

A few days ago I had the opportunity to attend a discussion on the skewed sex ratio and the laws related to abortion in our country, as an intern in the People’s Union of Civil Liberties. The discussion was conducted by Dr. Meeta Singh, who is the Chairperson of the Dignity of Girl Child Foundation which works for the prevention of gender bias in our society, both intellectually and demographically. I am presenting the compiled discussion, which was  based on the gender bias in our country, its consequences and the difficulties she had to face while implementing the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 2003 (PCPNDT Act) (Earlier, Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994).

This blog reflects the situations prevalent in Rajasthan, however the same scenario with modifications is prevalent all over India. The present adult sex ratio of India is 940 and the infant sex ratio is 914 girls  per 1000 boys. Even though naturally, more boys are born than girls (the normal infant sex ratio ranges between 105 boys for every 100 girls), the ratio in India has fallen far below this average. This has created a vicious circle resulting in the further fall in the adult sex ratio which can have catastrophic effects on the overall population, as will be evident later. It seems that the Vietnamese proverb “One son is children, two daughters are none” has been verbatim followed in our country too, to the extent that the two daughters have become “none” not figuratively, but literally. Several reasons have been indentified for the same.

A woman has been considered as a liability since ages in the Indian society. It is so not only because she has to be sent to her in-laws along with a lot of dowry, but also because she will have to be brought up till she gets married by spending a lot of money. Moreover the perception that  men are the bread earners and add value to the family while women as home makers do not add any economic value augment the reasons behind their ill-treatment. The religious sanctity associated with the supremacy of men and the patriarchal society that we live in, can be cited as other explanations for giving preference to the son.

There can be numerous sub reasons. Another reason, which has been seen in recent times, is the fear in the minds of parents that the girl who will be born, might suffer from sexual abuse. This has been more so in case of people who lack means to tackle such horrendous ordeals suffered by their daughters  as and when they arise. It becomes scarier for women who have suffered violence and do not want the same to happen to any of their close ones. Although, logically the solution so thought, doesn’t solve the problem. It was discovered that although these traditions had been going on since ages, the number of females dropped sharply after 1991 particularly. Earlier, people kept procreating until a  male child was born. However with the introduction of ultrasound technology in 1990’s, there remained no need to do the same, since the sex of the foetus could be determined before it was born. Since there was no law restricting the same, doctors were freely advertising services of sex selective abortion. The advertisements were a testimony of the fact that  education then had little role to play in spreading awareness about the harms of the disparity in the sex ratio.

They read, “Aaj 500 rupay kharch kare aur kal 5 lakh bachayein” (spend Rs. 500 today to save 5 lakhs tomorrow). This meant that a girl child was a liability in the eyes of even the most educated population of India. Before we continue the story further (which will but be in the sequel to this article), let me acquaint you with the Medical Termination of Pregnancy Act, 1971 (“MTPA”). It was introduced to combat the great number of deaths of the expecting mothers caused due to unsafe abortions. Population explosion was another reason for bringing in the Act. However, like every other law in India, there were loopholes in this law, which were used to misuse this social legislation. It needs to be noticed that ultra-sonography to detect the gender of a baby can be done only after a certain period of conceiving the baby, which is generally 12 weeks, since the baby does not develop fully till that time for the purposes of sex determination.

One of the conditions under which the MTPA allowed for the termination of pregnancy even after this time period (but before 20 weeks) was the failure of contraceptives resulting in mental anguish to the woman.  It is surprising to note the manner in which this provision was misused. Woman used to go for sex detection after 12 weeks and in case she bore a female child, she used to approach the doctor asking for abortion claiming that the contraceptives failed and was causing her mental anguish. The doctor used to abort the baby after the formalities. It is difficult to believe that most of the times it was only after twelve weeks that the woman realized that there had been a failure of contraceptives! Thereafter was devised the PNDT Act, 1994 (amended in 2003 to The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act). It forbade the pre-natal determination of sex of the foetus. It had many clauses which were helpful in delineating the motive of the Act.

The Act made a 4 level monitoring along with the registration of the clinics which carried on the process of ultra-sonography obligatory, even when it was for purposes other than sex determination. Even when these clinics planned to sell these machines, they needed to make sure that the buyer had applied for registration or was already registered. The records of the machine had to be maintained for a period of 2 years. The doctor if found guilty, was restricted from practicing for a particular period of time and if found for a second time, his/her name was struck from the register of the Medical Council of India. The inspectors, who were put in charge of preventing the misuse of these machines, were given the power of secret inspections. These inspectors used to inform the clinics being visited before the so called surprise visits, frustrating the aim of the Act and the visit. To decrease the impact of the worsening situation, E-cells were made in all the districts in Rajasthan. However the population and the number of clinics under the ambit of each E-Cell were huge to be managed efficiently by one. Many NGOs joined the effort of the government to make the Act a success and organized sting operations in collaboration with the police to hatch these rackets. The sequel to this article will depict these operations and continue the story further. ————————————————————-

 

PART-II

The implementation of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (“PNDT Act”) (amended in 2003 to The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act) was a tough knot to untie as was discussed in Part I of this article. This article continues the story left unfinished in the earlier Part. It enumerates the steps taken by the government and various NGOs to achieve the objectives of the PNDT Act. A prize of rupees 1 lakh was instituted for the people who could report about doctors carrying on gross crime of sex-selective abortion. Yet the crime continued unabated and every other day doctors were devising new ways to carry on this practice under the veil. To go undetected, the doctors had employed brokers who used to bring clients to them.

The doctors had no direct exchanges with the patient and even the results of the tests were communicated to these brokers only. Complex rackets were devised which were tough to break. Most of these doctors were influential and had connections with men in power. It was difficult to catch them since they maintained fool-proof official papers regarding the machines they used. Bogey (fake) clients were often used to catch them. The clients were given currency notes (a photocopy of which was kept as a proof with the organization trying to catch them), which they were asked to present to the doctor, while asking for abortion. When the notes were later recovered from the doctor, it was a proof of them carrying this evil process. However these decoy operations were not easy to carry out.

State authority’s permission was taken and an affidavit was signed by the patient which read that the patient was not interested in sex selective abortion. The very first stage of finding the decoy clients was the most difficult.  The family members were   not willing to send a pregnant lady for such a sting operation in fear of her losing the baby in case it became a prey to the evil eyes of others (which in Hindi is called nazar lag jana- a common superstitious belief in India.). It was also feared that if an influential doctor was caught red handed, he may send people to threaten the woman to take back her statements. Several initiatives have been taken to alleviate the situation (including the amendment in 2003). However a lot more needs to be done. More particularly, even when foeticides have decreased to a great extent, deaths of the female child are happening in the form of infanticides. Giving incentives to doctors to counsel people against sex selective abortions can be another way to stop the crime. Why do we actually need a balanced sex ratio? The increasing number of crimes against women is partially a result of the skewed sex ratio.

There have been instances of villages witnessing a ‘baaraat’ (the procession which a groom takes to the house of the bride) after more than 100 years. The declining number of girls results in practices like polyandry. There have been cases in Haryana particularly, where one woman was married to four husbands. This lady not only has to fulfill the material needs of food and water and carrying out domestic chores, but also the sexual needs of these four men. This results in adverse impact on the mind and body of the woman and also increases the chances of sexually transmitted diseases. Moreover the age at which girls are married off goes down, which is already low in certain parts of India. This is because, because of a lack of number of girls, the parents of the boys want to marry their child as soon as they can find a girl, thus putting a pressure on the girl’s parents. There is also a rise in the crimes against women since many boys are unable to find mates for themselves. For instance presently, there are 60 men out of every thousand, who are not able to find brides for themselves leading to more and more sexual crimes against woman.

Moreover, single men get attracted to terrorist groups and are an easy recruit, since they have little to lose with no family and children. More about this phenomenon can be read in the book ‘Bare Branches’ by Andrea M. den Boer and Valerie M. Hudson. There is also a conjecture that this would lead to a process of reverse dowry. Buying and selling of brides also takes place. What do you think is a long term solution for this? Educating the girls? No, it has been proven time and again that girls seldom take the decision of abortion (although the MTPA allows for it). In a country like India, where patriarchy is imbued even in laws, imagining a girl aborting a child without the permission of her partner, can be nothing but an imagination!

A way out can definitely be to educate the boys to respect girls so that when they grow older, they do not pressurize the women to do the same thing. A brilliant example of this is a campaign in the villages of Rajasthan by Dr. Singh whereby young boys are made gender sensitive and made aware of the consequences which follow the skewed sex ratio and today the results are amazing. The boys not only ensure that no discriminatory treatment is meted out to their sisters or any other women, but also make sure that they get equal rights.

The same boys who were earlier indifferent to what was happening and enjoyed being served hot food by their sisters are now putting up a brave fight to send them to school. I am just hoping that we do not become akin to China in this regard, where after the single child norm and a similar son preference in the society, the only child which can preferably be born is a son for obvious reasons. The situation is such that because of lack of women in the society, the women are abducted and married off, forcefully. These girls are then made sexual slaves. This is happening with girls who have not even attained puberty, making marriages of a teenager with an octogenarian a common sight. It is high time that we wake up and stand for the cause.

Decriminalisation of Suicide

Vipin Mittal is a 2nd year student of JGLS, Sonepat

In the year 1860, the British passed the Indian Penal Code with Section 309, which criminalized Attempt to Suicide. Before I argue in favor of decriminalization of suicide, a look at the reasons as to why this provision could have been enacted by the British would be helpful.

With the circumstances of those days in mind, there could be two reasons for this. Firstly, the value of human labor was immense in those days, which made it important for the colonizers to ensure their workers do not give up on their lives because of the working conditions. With the practice of Bonded Labor present in great number, and the Bourgeoisie required their labor, taking away their right on their own life would seem a great way to ensure they die only of natural causes.

Another reason could be the practice of Sati. In this practice, widows voluntarily sacrificed their life after their husbands’ death. This practice was something that was irking the humanitarian bones of the English. In order to curb this practice of voluntarily sacrificing one’s life, the colonizers could have criminalized attempt to suicide.

This provision is something that represents what is wrong with our legal system. To punish a person who is already struggling to live, suffering from some form of mental disorder or emotional trauma or societal problems, and punishing that person can solve none of these problems.

One thing that needs to be noted here is that many of the judgments that uphold the validity of Section 309 of the Indian Penal Code do it only on Constitutional basis and never question the humanitarian aspect of the law. The stand that I am taking has been reiterated number of times in the Court of law. An amendment was introduced in the legislature to omit Section 309, but the Parliament was dissolved before the amendment could be passed and the need to introduce this has not been felt again by the legislature.

Even the Law Commission of India in its 42nd Report suggested that the said provision must be omitted in 1971. This view was again held in the 210th report of the commission where the provision was rendered inhumane and hence had suggested decriminalization of Suicide.

A person attempting to commit suicide is not a threat to the society, neither is he, what the law calls, a legally sane person. An attempt to suicide is a cry for help, which can only be addressed through medical means and not penal means. A person imprisoned for the “crime” of committing does not get reformed or does not get deterred but is made emotionally weaker and mentally even more traumatized because of the brute environment of the prisons.

Let us imagine a situation where a person who is emotionally in a weak state for any imaginable reason like death of a family member, financially weak position, break up with girlfriend etc. In that state of depression, the person decides to take his life because he doesn’t want to live anymore.

What the current law suggests is that such person should either be successful in his attempt to take his own life or that he should be punished in case he survives. This is an erroneous position as this provision in a way ensures that people try harder to take their lives and not do it “half heartedly”.

So in the above example if the person survives, not only will he be in a state of depression but will also be behind bars for his luck of surviving his suicide attempt.

I think it has been long since we have been living with such inhumane laws and its time that more humane ways of dealing with such situations be introduced in law.

“Let them think what they liked, but I didn't mean to drown myself. I meant to swim till I sank — but that's not the same thing.”

-Joseph Conrad

Notice or a Heads up?

a 4th year student of ITMU Law School, Gurgaon

Notice or a Heads up?

 “Water and air, the two essential fluids on which all life depends, have become global garbage cans.” By Jacques-Yves Cousteau

 

As much as the domain of environmental law needs good lawyers to defend it in a court of law it also needs effective statutes. Statutes must serve the ends of justice rather than the purpose of perpetrators.

It is an undeniable fact that mankind is known for its destructive nature, for we are the only animals who hunt, not merely to feed but for greed. Our debauching thirst for development and expansion gave a boom to industrialization. This in turn resulted in production of unfathomable and unmitigated pollutants. We do recognize the fact that these issues are problematic but are unable to perceive their real intensity. Environment legislations serve as sentinels for protection of mankind. However a chain is only as strong as its weakest link. Our sentinels are equipped with loopholes instead of weapons of defense. We definitely need a wakeup call for we sleep a lot.

Who could possibly deny that a forewarned comes forearmed? The saying holds true when we go through the existing provisions of the Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974. Current provisions look like handcuffs on the hands of the pollution control authorities. Apparently there is something weird about the existing statutes. It is extremely essential to give a very clear interpretation to the said section to understand the intended purpose and effect of it. Section 21 of the Water (Prevention and Control of Pollution) Act, 1974 focuses on power to take samples of effluents and procedure to be followed in connection therewith. The State Board or any officer empowered by it in this behalf have the power to take, for the purpose of analysis samples of water from any stream or well or samples of any sewage or trade effluent which is passing from any plant or vessel or from or over any place into any such stream or well as per the section. The samples so taken are admissible as evidence in a court of law. Sub-section (3) of Section 21 requires the authoritative person to serve a notice before such evidence is to be collected. In simple terms, if the notice is not served the evidence is not admissible. Section 26 of the Air (Prevention and Control of Pollution) Act is more or less the same. Both the provisions happen to be identical in nature.

The crux of the matter is that the authorities are under an obligation to provide a notice in advance to the owner or the person in charge of the industry about such an investigation. So here is what it actually looks like- “Hello Mr. Thief I am a police officer and I am planning to drop by your house in the evening. Please be ready with all the incriminating evidence if any.”

By now you must have started thinking that there must be something reasonable behind the notice, after all the Indian Legislature would not make such a blunder while drafting an environmental legislation. To your surprise, perhaps the only reasoning is that the notice helps the owners/person in charge to facilitate the process. They are in a position to accumulate required documents and arrange for keys to the locks which are otherwise closed. Frankly speaking the rationale behind the serving of the notice is not even close to what we can call adequately reasonable.

The said notice gives enough time to the owners of the premises to make arrangements which ensure that they have complied with the set norms. That is why India is the cleanest country on paper and the most polluted in reality. Effluent treatment is often a costly business which is directly proportional to what one produces. Due to the immense pressure applied by the Supreme Court by virtue of its decisions, industries have been forced to install appropriate effluent treatment instruments/plants. However these plants are not switched on until and unless the pollution control officer is planning to pay a visit. Industry owners find it convenient to discharge their waste untreated as it saves them a few thousands or lakhs of rupees in the form of electricity and raw materials used in effluent treatment. The rest is taken care of by the lawyers of industries who know how to use a poorly drafted statute to their benefit.

We have already seen what happened in the Vellore Citizens Welfare Forum v. Union of India[1] case where untreated effluents were discharged in the Palar river. The river was polluted to the core. Water of more than 300 nearby wells was rendered unfit for drinking. The lands adjoining the Palar were poisoned due to chemicals making them infertile and unfit for any agricultural purpose. Similarly there are hundreds of industries on the banks of the river Yamuna. The appropriate authorities try to keep a constant vigil on these industries. However Yamuna is still being polluted. If you go to the Wazirabad area in Delhi you would be able to see a blend of effluents being discharged into the Yamuna. Despite massive governmental expenditure on cleaning the Yamuna, the status quo prevails.[2] The Yamuna's polluted stretch was about 500 km from Wazirabad in Delhi to Juhika in the downstream reaches of the river near Etawah in Uttar Pradesh, according to CPCB's 2010 data. Central Pollution Control Board (CPCB) revised report says the polluted length of the river has increased from 500 km to 600 km.[3]

The truth is that the Yamuna cannot be restored. The same applies to any other river which has literally been sacrificed in the name of the industries which deal with toxic chemicals. Our laws look more polluter friendly and less environment friendly. The industries near the Yamuna should be re-examined. And this time the authorities can surely use some surprise element. But this is not possible until and unless our legislature thinks about amending the existing regulations.

Section 21 of the Water (Prevention and Control of Pollution) Act, 1974 and Section 26 of Air Act, 1981 are notoriously unreliable and mischievous in nature. These sections offer undue safeguards for the industry owners.  Money minded industry owners use such regulation to the prejudice of the environment and the people at large. The authorities must be empowered to infiltrate the premises of industries at any time they deem fit and proper.

          There is a strong link between the loopholes in the above statutes and continuous polluting of river and air. Had the authorities been empowered to pay surprise visits to industries, several such industries discharging untreated waste would have been caught red handed and prosecuted. But surprisingly they are not empowered with such authority. Their visits to the manufacturing plants are does not bear the desired results.

       The Supreme Court has also expressed its dissatisfaction towards the slow pace of work despite such a big investment in the Yamuna’s case. The Hon’ble bench of Justices Swatanter Kumar and Madan B. Lokur pointed out – “All the agencies have spent crores of rupees. What is the purpose? What work has been done ultimately?” The Bench noted that despite there being as many as 18 sewage treatment plants to treat the effluents; the treated water has “a high rate of pollution”.

          The real question is not whether the Yamuna is being cleaned or not. The million dollar question is whether we will ever stop polluting it. Evidently the water of the Yamuna still contains toxic chemicals. These are fresh chemicals which were not present earlier. Since the city’s sewage and other drainage channels cannot discharge chemicals in the river, suspicion veers towards the industries situated on the banks of the Yamuna. These industries were given a clean chit by the Pollution Control Board. The approvals so granted could have been a result of notices served under Section 21 and Section 26 of the two Acts. If the visits of the officials of the Pollution Control Board were not pursuant to a notice, the result might have been different.

          Despite the strict attitude of the Supreme Court and the Pollution Control Board it turns out that our statutes have severely failed us.  The key to the answer lies in revamping the existing statutes. Our courts have always given importance to public interest over private interest. Private interest in the present case- that of the ‘right to be present while evidence is taken’ must be relaxed against public interest which is ‘right to safe and healthy environment’.  Since the courts have to stick to the letter of the law while deciding cases, it is equally difficult for them to give a beneficial construction to statutes. Let us hope that the wisdom of our authorities revive before the damage caused by hibernated statutes turns our natural resources into garbage cans.

[1]Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2715

[2] See http://indiatoday.intoday.in/story/clean-yamuna-mission-fails-panipat-delhi-stretch-most-polluted/1/199976.html; Also see http://www.dailymail.co.uk/indiahome/indianews/article-2156984/Money-river-Rs1-500-crore-spent-cleaning-Yamuna-goes-drain-Panipat-Delhi-stretch-fails-pollution-test.html  as visited on 15/06/2014

[3] Refer Annual Report (2010) of Central Pollution Control Board available at www.cpcb.nic.in

 

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