HEALTH LAWS TRAVERSING FROM WAY TOO WEST ARE MAKING INDIA BLESSED WITH LAWS!
Author: Ardhendu Sekhar Nanda[1]
Co-Author: Manas Ranjan Panda[2]
KIIT School of Law, KIIT University
ISSN: 2582-3655
ABSTRACT
Catena of substantial majors put together to forward the health law in one nation and as per the history of the evolution of it in India; it has been highly tectonic to create a castle of acts and significant provisions related to public health and morality. Facets of public health law include a multitude of options like environment, food, morality, social ethics, practices, medical customs, medicine, professional practice, and hospitality, which form a bigger circle to think upon, legislate and execute such laws. As a result of which, the Indian Government has not only legislated more than 100 acts, bills and statutory provisions, both pre-constitutional and post-constitutional, bearing some loopholes and unidentified mistakes in them. Bottlenecks are a test to pass for the professional practitioners as well as hospitality crowd, which seem toilsome and pestiferous task for the regulators too in an unnecessary manner as per the bulk of tests and complaints to go through. Through the pathways, come various forms of illegal and unethical methods to get sure shot freedom from the purview of the law in a super economic way, which is not only corrupt but also tarnishes the medical practice in a vividly obnoxious manner. Surrogacy and Child Birth is a dark area where Surrogacy Bill, 2018 has been dealt in a feckless manner, which is contravening the Fundamental Rights indirectly which is also done by NMC Bill, 2019 also. Cost-effectiveness and policy considerations go hand in hand in Indian legislation for perfect health settings and health insurance is yet also a loophole that has to be made compulsory for not only the working class but also the other sectors should be protected under the insurance scheme too. Checks and Balances are too much necessary in this field, which would progress with time as expected yet now.
1. INTRODUCTION-
Decades pass off but the concern of the health of an individual would always remain in the topmost priority amidst the time as it has been crumbling a lot. The decade has experienced a lot many changes regarding the development in the environment, lifestyle, neatness, hygiene, and factors more or less concerned within the same ambit but, the question lies with the happy sustainability of people and within the accepted pace of reforms in societal norms, if it is correct to move upwards or not. With the broadening of technologies in cybersecurity, privacy, electronic records, robotic analysis and assistance, cloud computing, data sciences as well as e-hospitals on online platforms, the sovereigns are losing the control on the general ethics of health laws. World Health Organisation (WHO) has focused on various aspects of health law inclusive of Universal Health Coverage into account, which also has relied upon the paramount responsibility of the Government to formulate statutory laws, regulatory and administrative laws, contracts, case law, and customary laws. Even if, the lacunae in the international laws can witness issues of jurisdiction, conflict of laws and modern framework of solutions such as drug trafficking, medical practices abroad being banned across borders and a lot more.
Standardized framing of health laws is one of the subjective elements to control and regulate the issues related to health law inside and outside the States. Witnessed the International Health Regulations (IHR)[3] for the first time in 1969 ad latest in 2005 regarding the Ebola Virus, WHO has also mandated the UN members to attend the World Health Assemblies to emphasize on Public Health as a big concern[4]. Even if on one point, the environment is connected to the health of human beings by proper ecological balance and subtle art of conservation. So, everything is linked with one another in terms of health for long term life benefits and is also attached to the legal aspects to properly assess for profound wellness and welfare at a huge scale. As compared with European Union and US, South Asian laws are quite lenient and therefore, it harms ecology, public health as well as on the individuals who get a back door entry to every act forbade.
2. NARCOTICS AND IT’S SURFING TECHNIQUES-
The affinity between drugs and human rights makes it too noteworthy in the field of law to balance it up and curb out the differences for a healthy lifestyle, which has remarkably generated the need for a specific law other than the general legislations available in India. Human rights are the topmost point to be considered and prioritized for a good upliftment for all the sectors of society with changing dynamics to make it a better place to live in. Article 21 elucidates everything within as per Right to Life but the fundamental right to health care posing against the illegal and malafide use of drugs is also a crucial point to be focused[5]. Overall, to make an abode, there needs to be a fair use of drugs, proper medical practice by doctors and permission to manufacture and regulate the pharmaceutical industry as per the commercial laws are concerned.
Coming to the specific statute, Narcotic Drugs and Psychotropic Substances Act, 1985 is a huge encounter to curb the issues related to narcotic drugs being used illegally across India which is still not fully in control because of it’s less intensive penal nature. The people across the countrysides, towns and even the cities do manipulate, trade and market such psychotropic substances that have addictive nature surpassing the proper medico-legal aspect of their necessity. Even if, the medical practitioners and doctors have achieved unaccountable profits, maleficent used the substances and scaled against the professional nature of their works. Under Chapter 20C of NCRB Report, complete statistics are displayed regarding the seizures of illegal drugs from the states[6]. Fast-growing juveniles to the adults are the worst hit ones, who get into maze traps on their own by starting up with very early stage via witnessing them, testing them for mistake turned to be experienced and then turning into a habit. Spotting youth-boosting up injection shots or smoking marijuana across the college campus and even promoting them for comfort to expand the circle, help in showing off and such a nature would barely change for anything good.
Introduction of Narcotics and Psychotropic Substances Act, 1985 has laid down clearly on ‘stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances and for matters connected therewith.’ But, is the judicial system laying down proper actions towards the drug addicts to stop the crimes at the root level? Are the authorities concerned playing a vital role and taking their job seriously regarding the drugs across India? Finding solutions to these issues is quite difficult and complicated due to multilateral protection being given to the offenders as defenses to get rid off the provisions easily.
In the case of Sreedevi vs. the State of Kerala[7], the accused lady was found with possession of 6 kgs of marijuana, after the seizure of which, she was tried and left out in bail with the submission of Rs. 1,00,000 as punitive damage with two sureties fulfilling the conditions of not repeating the same offense. Critical analysis of the use of S. 20(b)(ii)B of NDPS Act,1985 shows that the rigorous imprisonment which is supposed to be minimum of 10 years was not there and only the minimum fine was imposed which shows the leniency of the judiciary on the females and also the stringency being taken lightly. This has the further consequence of allowing the future offenders to pass off easily under the provisions of law and even if, escape off if the police authorities, drug controllers and experts can’t collect information of such acts. So, law and interpretation go parallel where the subtle amount of pressure shouldn’t be laid directly on the judiciary from either legislature or executive or socio-economic or political purviews to make the judgment biased and should be used very hard to set examples for the future offenders not to commit such offenses again.
On the other side, in the same state, there was a stringent action following up the law boldly in the case of Shafeeq vs. the State of Kerala[8]. The accused was transporting 13 kgs of marijuana under the cover of hashish oil and being held by the excise inspector, pleaded to be only the driver who is unaware of fact what’s being transported. Though there were pleadings to show the act was bailable and non-cognizable, the failure to which led him to face rigorous imprisonment and also huge fine being imposed. Proclaiming malafide interests and illegal acts would always result in stringent actions, this was a clear judgment without lacunas.
3. REVOLUTION OF FOOD SAFETY AND STANDARDS-
Pumping up the efficient legislations and regulations in the sector of food safety and standards in the country is no less a war against the injustice to consumers, but also a change in momentum of the development as indexing of development states the significance in it. During the 1990s, there were hardly any legislations formulated for the food safety standards and consumer protection in the modern aspect in the developing countries and amongst them, India was too behind as the packaged food industry had grabbed the speed of sales in it. The necessity of new and modern laws was on the verge of making and thus, the people were concerned for the same to protect their health and lifestyle. Food Safety and Standards Act, 2006 was the legislation being taken as a conglomerate of other existing statutes and finally got into enforcement in 2011 after the set-up of FSSAI[9] under the Ministry of Health and Family Welfare, Government of India. Authority established proved to be helpful to a far-stretched extent in assessing the quality of food, raising the standards, double-check on quality with proper scientific analysis, licensing of food business, regular inspections and a lot more, which had an immediate effect in creating a revolution in the food market of India.
Advancements are in the form of scientific food products as incomplete scientific data has to evolve with time as per own scientific research and approach towards food hygiene, the longevity of packaged foodstuffs, sampling of foodstuffs, proper research on the quality towards the effects on allergies, reactions and so on. Major food producer companies serve the basic necessity of life in a formal manner sequencing what is suitable for the general public and even look out for conveniences of the sensitive people looking onto specialized food. So, the concern lies with the view on the economic aspect that leads to affordability and another sphere of modern issues attached to the health sector in a wide aspect where FSSAI has a stamp fixed to every processed food product available in the market[10]. Whether it may be the earlier statutes, which helped in assessing the proper guidelines or the tougher mechanism to filter the goods as in Prevention of Food Adulteration Act, 1954 or any other, the basic necessity has to be refined to such an extreme level so that it is never going to be unhealthy or inedible by any chance. Crossing any limit can lead to face further consequences and health risks, which can affect multiple sectors like the food industry, medical, human rights and also, the economic world.
But still, then, India has further issues to solve where the roadside hawkers, wholesalers, and certain retailers are allowed to sell food substances without bringing into notice that they don’t have any license as such to sell legally. Poverty strikes the allowance indirectly to such illegal sellers of food items without much of risks or liabilities and henceforth, they get onto the surface level of the economy for a fair state. This is a lackluster as we don’t have laws on them that can re-check the system of such illegal sellers tor any such regulations, which can turn out to be harmonious in the future. Best of initiatives taken by FSSAI to promote the ‘eating up of healthy food’ are via Global Food Activism under the name of ‘Swasth Bharat Yatra’ (Eat Right India), where people staying in metropolitan cities and countrysides got awareness with regards to the importance of nutritious food. The necessity of safety is far more important than normalizing of food, which is to be duly maintained to keep a healthy life. Food Safety Appellate Tribunal[11] is there to adjudicate the cases in regards to more than 10,000 standards and various strata of food products in a wide manner, but the FSSAI is underfunded by the Government. Lack of funds for progress shows the inefficiency of Government or not giving priority to the FSSAI department for undertaking the risks in a good manner.
The landmark case of Nestle India Limited due to its highest-selling Maggi noodles has recently uplifted the quorum of FSSAI as the Maggi Noodles being produced and sold by the company were not of standards as prescribed for consumption. A normal health-conscious diet person would not subside to the levels of various ingredients that are restricted to food safety. Maggi noodles, which have captured the hearts of a lot many youngsters in India, instead of exceeding the limits of lead and mono-sodium glutamate in its secret recipe, should try to balance the spice inside along with necessary preservatives to make it good enough at the same go. Claiming zero counts on MSG, tests conducted by lab experts in Gorakhpur and Kolkata found out awful results as per FDA standards and it should be applicable in the quality management test without failing in any aspect. This has been to an intensifying result in a ban of instant noodles and destruction of noodles worth $50 million and 30,000 tonnes of them, which has not only lead to an unfortunate loss but also a bad addendum in the reputation of a company which has been with a monopoly on instant noodles of nine varieties at the same time. Credit goes on the food inspections and checks on such brands being blindly trusted after some time without any specific eligibility in the public notion. Ethical values[12] in food safety are respected significantly and especially when it comes to certain brands that have captured the hearts of billions, this is usually treated as a big illustration forever.
4. INDIA’S ABORTION LAWS CONFLICT-
Over the world, debates regarding abortion are normally given a role as a fight among “decision” and “life”. Some contend that a woman’s choice about her very own body is vital, while others opine it’s the subject of a creating carrying on with being’s life. Abortion has been lawful in India since 1971 yet it is not a woman’s right. Legitimate hindrances, for example, the sweeping 20-week incubation limit, no mention of unmarried women in the provision of contraceptive failure, the requirement for doctor’s assent–all oblige and deny women reproductive justice.
Abortion has been lawful in India since 1971, under the Medical Termination of Pregnancy (MTP) Act, which is liberal in its interpretation. Nonetheless, it’s not without restrictions, and the need to correct it can’t be underlined enough. There is plenty of grey areas that the law doesn’t address. Furthermore, it likewise acts as experiencing some cross-purpose with other significant laws. The terrible instance of the 10-year-old rape victim being denied authorization to abort shook the country a year ago and reignited the discussion about the need to address the loopholes of the abortion laws. The case forced the administration and therefore the Supreme Court to watch the difficulties women face during this nation for a daily apply, however actually necessary, technique. It likewise urged an MP to bring associate inquiry up within the last Parliament session concerning the assessed time it might see the new bill to be deferred and passed[13].
All sexual activity under the age of 18 is dependent upon lawful examination. Therefore, if any pregnant minor goes out and seeks any sort of medical opinion, the doctor is required by law to report the issue to the authorities. This guideline works inconsistently with MTP guidelines which expect doctors to secure the identity of abortion seekers. The result of guidelines working experiencing some miscommunication is that a 16-year-old pregnant young girl will presently search out alternatives other than going to doctors, dreading the loss of privacy.
Despite the good intentions of the POSCO Act, the main concern remains that nearly half the women in India are hitched before they turn 18, and the odds of sexual activity are subsequently high. With POSCO and MTP Act working inconsistent with each other, a significant number of them search out unregulated, unregistered and eventually hazardous abortion since safe offices dismiss them. Another law that comes in the method for doctors performing safe abortions is the Pre-Conception and Pre-Natal Diagnostic Techniques Act of 1994 (PC-PNDT). The law, which looks to handle the scourge of female foeticide, condemns sex assurance of the hatchling during an ultrasound.
Despite the right intentions, doctors utilize this law as an obtuse tool to anticipate sex-choice and female foeticide. Shouldn’t something is said about situations where premature birth is performed for impeccably veritable reasons, and things being what they are, the embryo is female? There is an absence of clearness on the issue. At the point when medicinal offices with safe abortion administrations dismiss women inspired by a paranoid fear of the specialists, they go to inadequate specialists and quacks.
The issue is additionally one of access. One of every two abortions performed to bring about genuine wellbeing dangers for women and that is down to a genuine lack of individuals prepared in fetus removal administrations. In the bill trying to correct the MTP Act, which is as yet sitting in Parliament, it was imagined that AYUSH specialists, prepared medical attendants and assistant attendant maternity specialists could perform non-careful premature births using pills gave they experience required preparing. For what reason is this bill still bound to the chilly stockpiling?
In August 2008, Niketa Mehta moved to the Bombay High Court with a solicitation to end her 25-week pregnancy as her ultrasound demonstrated a seriously irregular fetal heart condition. She was denied a fetus removal and inevitably endured a miscarriage[14]. It’s been a long time since she was denied regenerative equity. It has been a long time since our 47-year-old abortion law was last revised to address difficulties that block access to premature birth administrations. As further revisions to the law anticipate Cabinet endorsement, women everywhere throughout the nation keep on battling for access to safe abortion administrations[15].
Be that because it might, development on this front stays moderate and wanton. As obstructions to urge to stay on existing, women are forced to appear for abortion administrations from unqualified practitioners, illicit suppliers or ‘quacks’, which can ofttimes induce medicative inconveniences and antagonistic upbeat suggestions. Revisions to the law address lope holes distinguished in 2006. The MTP Act allows women to end her pregnancy beneath bound conditions within twenty weeks; it should be done by an associate noncommissioned therapeutic professional at associate listed restorative enrolled restorative office. In any case, it is not the right of a woman– which means she cannot get in a restorative office at any part of her maternity and solicitation for abortion. Legitimate boundaries, for instance, the blanket 20-week gestation limit[16], no notice of unmated women within the clause of contraceptive failure, the need for doctor’s assent – all oblige and deny women fertile equity.
The battles of women (and frequently the suppliers of those administrations) do not finish here even so the absence of offices, lacking foundation and disgrace, and therefore the cowl and conflation of various laws with the MTP Act simply boost the difficulties.
The Pre-Conception and Pre-Natal Diagnostic Techniques (PC-PNDT) Act, 1994, and therefore the Protection of Children from Sexual Offenses (POCSO) Act, 2012, mean to handle, check and dispense with the act of sex determination and therefore the increasing incidence of shaver sexual mistreatment within the nation, separately. Be that because it might, on account of the PC-PNDT Act, there has been associate exuberant endeavor by government specialists to clasp down on all second-trimester abortions. This is often driven by the conviction that each one-trimester abortion is for sex determination, a conviction that won’t be supported by proof.
Misuse of PCPNDT Act – The PCPNDT Act outlaws intercourse-precise demonstrations of end of pregnancy. This was due to sonography and different contemporary innovation being abused to determine the sex of the unborn child and prematurely finishing it rashly in times of female infant. Recently, PCPNDT Act has been wrongly utilized by law authorization workplaces to clip down on all untimely births as they sense that employing clipping down on untimely births, as a rule, they will have the option to spare woman child who’s in effect mechanically ended during childbirth. Specialists also are careful about untimely births due to the capability of being arraigned under the PCPNDT Act, which welcomes the cruel subject for offenders[17]. The “contention” among PCPNDT and the MTP Act feels produced. The PCPNDT bans any therapeutic activity this is supposed to decide the sexual orientation of an unborn baby[18]. If any individuals comply with up on such guarantee of the sexual orientation of an unborn baby and stop the pregnancy in mild of the truth that the child was girl, such an activity is to be indicted, whilst the culpable individual/s and the specialist and other restorative experts protected are to be rebuffed. MTP Act, then again, permits instigated unnatural start cycle of unborn baby, be it male or female, on grounds like attack incited being pregnant, the mother’s life being in danger, the child experiencing any inability and so on. The very motive for the MTP Act is uncontrollably particular concerning the PCPNDT Act. While the formers assist to help certifiable instances of fetus removal, the ultimate expects to stop sex assurance and sex-specific premature birth MTP Act doesn’t allow sex warranty of the child. In this way, it’s miles primary for regulation authorization offices to understand the cause in the back of each the legal guidelines and practice it in like manner[19].
The conflict between POCSO and MTP– The MTP Act permits minors to terminate their pregnancies with the assent of their legal guardians. This is intended to assure secrecy and speed up the method of terminating the pregnancy to guarantee that health difficulties don’t affect the minor. POCSO Act, then again, makes it legitimately obligatory for experts attending to termination of pregnancy of minors to report such cases of minors getting pregnant to regulation implementation professionals. On the occasion that the specialist doesn’t file this and proceeds with the abortion process, he/she will likewise be legitimately prosecuted. Accordingly, minors do not incline towards going to enlisted professionals and go to quacks or other restorative expert co-ops who may seriously complete the abortion. This nullifies the overall purpose of the MTP Act which seems to make certain the persona of girls experiencing incited unsuccessful abortion process. The situation in India is a great deal progressively critical as the approximate portion of all women who are minors, who may not benefit admittance to excellent lawful administrations to quit young pregnancy or may need to change their life and appendage by way of experiencing an unstable medical technique. In this way, there is a want to investigate this erosion between the MTP Act and the POCSO Act and dispose of it as that is placing the lives of a ton of young girls at capacity risk. India is worried about the Convention on Rights of Child (CRC), a valid instrument made with the aid of the United Nations in 1992 to research the welfare of minors. As indicated by using the CRC, minors ought not to be accepted to be a bit of any sexual movement which is not headstrong or normal. This changed into intended to shield children from sexual rackets and sexual stalkers. Yet, the CRC didn’t advocate that the sexual self-rule of children ought to be reduced. It seemed to just shield minors from being explicitly abused. This became likewise referred to through the Justice Verma Committee in their final report in 2012 on correcting India’s criminal equity framework to manage assaults[20]. They referred to Article 34 of the CRC to counter POCSO’s arrangements prohibiting any consensual sexual activities such as minors. Accordingly, the POCSO Act needs urgent amendments on the way to permit consensual sexual action among minors with a fine degree of secrecy to end adolescent pregnancies with the least legitimate competition conceivable.
India’s abortion laws and methods are archaic. They intend to forestall populace blast and assurance women privileges, however, they are loaded up with escape clauses and confinements. Abortion is not an ensured right but rather can be taken up under specific conditions like a child experiencing any physical or mental disability, pregnancy being an aftereffect of assault, adolescents turning out to be pregnant and so forth. This prompts plenty of undue limitations on women, which must be discarded. The Act must become encouraging and not confining[21]. Taking everything into account, while India’s abortion laws are to be sure intended to help liberate women society, its application and substantive components experience the ill effects of some genuine habits. There is a need to refresh the MTP Act to acquire its consonance with cutting edge innovation and restorative strategies. There is additionally a need to revise the POCSO Act to get rid of its conflict with the MTP Act. India’s restorative and lawful foundation needs improvement. Accordingly, the need for great importance is for the government and components of common society to meet up and improve the substantive and implementational components of India’s abortion laws and arrangement.
[1]4th Year Student, KIIT School of Law, KIIT University
[2]4th Year Student, KIIT School of Law, KIIT University
[3] Link- https://www.who.int/ihr/en/
[4]Gordon, Larry. “Public Health Is More Important than Health Care.” Journal of Public Health Policy, vol. 14, no. 3, 1993, pp. 261–264. JSTOR, www.jstor.org/stable/3343038. Accessed 13 Jan. 2020.
[5]Mathiharan K. “The fundamental right to health care.” Indian Journal of Medical Ethics [Online], 11. 4 (2003): 123. Web. 13 Jan. 2020
[6] Page-667 of Chapter 20C in link- http://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/NEWPDFs/Crime%20in%20India%20-%202016%20Complete%20PDF%20291117.pdf
[7]2019 SCC OnLine Ker 5426
[8] 2020 SCC OnLine Ker 34
[9]Jena, P. R. (2018). Socio‐economic Implications of Food Safety Standards in India. World Food Policy, 4(2), 133-152.
[10]Epstein, J. (2014). Scientizing Food Safety: Resistance, Acquiescence, and Localization in India. Law & Society Review,48(4), 893-920. Retrieved February 10, 2020, from www.jstor.org/stable/43670432
[11] Dhulia, A. (2010). Laws on food adulteration: a critical study with special reference to the food safety and standards act, 2006. ILI Law Review, 163.
[12] Ramswamy V.B. (2015) Ethical Values of Food Safety. In: Hongladarom S. (eds) Food Security and Food Safety for the Twenty-first Century. Springer, Singapore
[13]https://theprint.in/opinion/abortion-has-been-legal-in-india-since-1971-but-it-is-still-not-a-womans-right/51634/
[14]Kher S. Niketa’s miscarriage brings back focus on legal cut off for abortion. Indian Express2008 Aug 15 (online edition) [cited 2008 Sep 30]. Available from: http://www.expressindia.com/latest-news/Niketas-miscarriage-brings-focus-back-on-legal-cutoff-for-abortion/349199/
[15] https://theprint.in/opinion/abortion-has-been-legal-in-india-since-1971-but-it-is-still-not-a-womans-right/51634/
[16]Section 3 of Medical Termination of Pregnancy Act, 1971
[17] The Indian Express, What’s wrong with India’s abortion laws?, December 6, 2017, available at http://indianexpress.com/article/gender/whats-wrong-with-indias-abortion-laws/
[18]SECTION 6 OF THE PRE-NATAL DIAGNOSTIC TECHNIQUES (REGULATION AND PREVENTION OF MISUSE) ACT, 1994
[19]Vandana Prasad, Contrived Confusions: No Contradictions Between PCPNDT and MTP Acts, Vol. 50, Issue No. 10 ECONOMIC AND POLITICAL WEEKLY (March 7, 2015).
[20]JUSTICE J.S. VERMA COMMITTEE, Report of the Committee on Amendments to Criminal Law, 443-444 (January 23, 2013).
[21]The Huffington Post, Why Is India’s Abortion Law Failing Its Women On So Many Fronts?, August 4, 2017, available at https://www.huffingtonpost.in/2017/08/04/why-is-india-s-abortion-law-failing-its-women-on-so-many-fronts_a_23063014/