Sunday, May 23, 2010
Noise pollution
Noise causes health effects, as also socio-cultural and economic effects. Most of the time, its effects cannot be evaluated objectively. Noise is generated from a variety of sources such as industries, transport vehicles, construction activities, generator sets, fire-crackers and a variety of indoor and outdoor sources. A number of Acts and Rules have been framed in our country, for control of noise pollution.
RIGHT TO INFORMATION ACT
Right to Information Act mandates timely response to citizen requests for government information. It is an initiative taken by Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions to provide a– RTI Portal Gateway to the citizens for quick search of information on the details of first Appellate Authorities,PIOs etc. amongst others, besides access to RTI related information / disclosures published on the web by various Public Authorities under the government of India as well as the State Governments.
An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.
Whereas the Constitution of India has established democratic Republic.And whereas democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed.And whereas revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information.And whereas it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal.
An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.
Whereas the Constitution of India has established democratic Republic.And whereas democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed.And whereas revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information.And whereas it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal.
Sunday, May 16, 2010
RIGHT TO LIFE AND CAPITAL PUNISHMENT
Right to Life & Capital Punishment in India
Capital punishment, also known as Death penalty, is essentially the execution of an individual as punishment for offense by a state. The crimes which can lead to capital punishment are called capital crimes or capital offenses.
In India, capital punishment is granted for different crimes, counting murder, initiating a child’s suicide, instigating war against the government, acts of terrorism, or a second evidence for drug trafficking. Death penalty is officially permitted though it is to be used in the ‘rarest of rare’ cases as per the judgement of Supreme Court of India. Amongst the retentionist countries around the world, India has the lowest execution rate with just 55 people executed since independence in 1947. Since the condition of the ‘rarest of rare’ is not exactly defined, sometimes even less horrific murders have been awarded capital punishment owing to poor justification by lawyers. Since 1992, there are about 40 mercy petitions pending before the president.
Saturday, May 1, 2010
Couples can Adopt an Abandoned Girl even if they have a Daughter
Couples can Adopt an Abandoned Girl even if they have a Daughter
Hindus who always wanted to adopt a girl despite already having a daughter can now do just that.Hindu personal law prohibits same gender adoption but a landmark judgement by the Bombay High Court disregared that.
Stating that courts must "harmonize personal laws with secular legislation",Justice D Y Chandrachud held the Juvenile Justice (Care and Protection of Children) Act of 2000-a secular law enabling rehabilitation of abandoned children through adoption-would prevail over the Hindu Adoption and Maintenance Act(HAMA).HAMA places restrictions on adoption.
This was the first time the court was interpreting provisions of two conflicting legal provisions on adoption-the 54-year-old Hindu Adoption Act and nine-year-old Juvenile Justice Act.
Hindus who always wanted to adopt a girl despite already having a daughter can now do just that.Hindu personal law prohibits same gender adoption but a landmark judgement by the Bombay High Court disregared that.
Stating that courts must "harmonize personal laws with secular legislation",Justice D Y Chandrachud held the Juvenile Justice (Care and Protection of Children) Act of 2000-a secular law enabling rehabilitation of abandoned children through adoption-would prevail over the Hindu Adoption and Maintenance Act(HAMA).HAMA places restrictions on adoption.
This was the first time the court was interpreting provisions of two conflicting legal provisions on adoption-the 54-year-old Hindu Adoption Act and nine-year-old Juvenile Justice Act.
Friday, April 30, 2010
Education: A Fundamental Right
In a historic decision, the Union Cabinet finally cleared the long-pending Right to Education Bill, paving the ways for free and compulsory education for children. Now education would become a fundamental right and it would be legally enforceable duty of the Centre and the states to provide free and compulsory education. The Right to Education Bill is the legislation to notify the 86th Constitutional amendment, which gives every child between the age of 6 and 14 years the right to free and compulsory education. It was passed by Parliament in December 2002. Education is the most potent mechanism for the advancement of human beings. It enlarges, enriches and improves the individual's image of the future. A man without education is no more than an animal. Education emancipates the human beings and leads to liberation from ignorance.
In accordance with the Preamble of UDHR, education should aim at promoting human rights by importing knowledge and skill among the people of the nation states.
Article 26 (1) of UDHR proclaims that: Every one has a right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit."
Article 26 (2) states that Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms; It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for maintenance of peace. Further, Article 26 (3) provides that parents have a prior right to choose the kind of education that shall be given to their children."
The right to education has also been recognized by the International covenant on Economic, Social and Cultural Rights. Article 13
(1) states that,: The states parties to the present covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and sense of its dignity, and shall strengthen the respect for human right and fundamental freedoms.... Article 13
(2) further provides that the states Parties to the present covenant recognize that, with a view to achieving the full realization of this right:
(a) Primary education shall be compulsory and available free to all;
(b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;
(c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the
progressive introduction of free education;
(d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received on completed the whole period of their primary education;
(e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.
Legislation guaranteeing free and compulsory education as a fundamental right for children between the ages of 6 to 14 years has been enforced in the country under The Right of Children to Free and Compulsory Education Act 2009 (RTE). The RTE, which will require Rs 1.7 lakh crore for the next five years, is expected to benefit almost one crore children who are currently not enrolled in school.
In developed countries, above 40 percent of those between 18-24 years move into the university system. The global average is 23 percent. However, in India that figure is just 12.4 percent. The notification of the RTE greatly increases the potential to channel students into secondary and then higher education. Along with implementing the act, the education ministry’s next focus area will have to be on re-examining secondary and higher education capacities and systems in order to handle the increased numbers of children coming out of elementary education.
Consent to Abort
The Indian Apex Court has ruled that a physically major and mentally minor girl,who has no concept of sexual intercourse,pregnancy or motherhood,has the right to decide whether or not she wants to give birth to a child conceived of rape.
Since under the Medical Termination of Pregnancy Act,1971(MTP Act)pregnancy cannot be terminated without express consent of the mother,the moot question was whether a mentally retared woman is capable of consenting to the termination of pregnancy or not.
The expert Body cocluded that victim suffered from mild to moderate mental retardation,was “incapable of making the distinction between a child born before or after marriage or outside the wedlock”and was “unable to understand the social connotations attached thereto”.A normal women may undergo abortion solely on account of the social stigma but the women in question is simply incapable of applying a decisive criterion that a normal women in her circumstances is very likely to.
Wednesday, April 28, 2010
Relavance of COPYRIGHT
Of all the tool of Intellectual Property Rights,Copyright and the Related Rights cover protection for the broadest range of innovative works. It provides a framework for the protection of creative works that are expressions fixed in any medium Copyright .by its very nature interfaces with the publishing, photography, computer generated works, entertainment including films, drama, architectural, works of artistic craftsmanship, audio recordings, dance forms, educational, transmission / broadcasting, art including industrial drawing, sculpture, painting, lectures etc. Creative expressions are as old as human societies and hence this field of IPR also gets organically linked to cultural dynamics of societies. The associated IPR issues need to be appreciated and addressed. [see Intellectual Property… A Powerful Tool for Economic Growth WIPO Publication No. 888, Chapter 6, pages 190-236]
There is thus Copyright of the creators in literary, dramatic, musical and artistic works and neighbouring rights or related rights for those who produce sound recordings, films, broadcasts, cablecasts and published editions.
Central to Copyright are the recognition of the creator and the owner of the work. Hence documentation and establishment of the author, the time, place of creation of the work, the nature of the creative work and the circumstances under which the work is created are of paramount importance. Based on these parameters, the work qualifies for a Copyright or neighbouring and related rights (in some texts also defined as entrepreneurial copyrights). Accordingly the Copyright law has provisions for ownership, nature of the right, the duration of the right and scope of monopoly. [see “Intellectual Property by W.R. Cornish Universal Law Publishing Co Pvt Ltd, Delhi India, 3rd edition, 1st Indian Reprint 2001 pages 330-331]
Copyright infringement, or copyright violation, is the unauthorized use of works covered by copyright law, in a way that violates one of the copyright owner's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.
For electronic and audio-visual media, unauthorized reproduction and distribution is also commonly referred to as piracy. An early reference to piracy in the context of copyright infringement was made by Daniel Defoe in 1703 when he said of his novel The True-Born Englishman that "Its being Printed again and again, by Pyrates". The practice of labeling the act of infringement as "piracy" predates statetory copyright law. Prior to the Statute of Anne 1709, the Stationers' Company of London in 1557 received a Royal Charter giving the company a monopoly on publication and tasking it with enforcing the charter. Those who violated the charter were labeled pirates as early as 1603.
Central to Copyright are the recognition of the creator and the owner of the work. Hence documentation and establishment of the author, the time, place of creation of the work, the nature of the creative work and the circumstances under which the work is created are of paramount importance. Based on these parameters, the work qualifies for a Copyright or neighbouring and related rights (in some texts also defined as entrepreneurial copyrights). Accordingly the Copyright law has provisions for ownership, nature of the right, the duration of the right and scope of monopoly. [see “Intellectual Property by W.R. Cornish Universal Law Publishing Co Pvt Ltd, Delhi India, 3rd edition, 1st Indian Reprint 2001 pages 330-331]
Copyright infringement, or copyright violation, is the unauthorized use of works covered by copyright law, in a way that violates one of the copyright owner's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.
For electronic and audio-visual media, unauthorized reproduction and distribution is also commonly referred to as piracy. An early reference to piracy in the context of copyright infringement was made by Daniel Defoe in 1703 when he said of his novel The True-Born Englishman that "Its being Printed again and again, by Pyrates". The practice of labeling the act of infringement as "piracy" predates statetory copyright law. Prior to the Statute of Anne 1709, the Stationers' Company of London in 1557 received a Royal Charter giving the company a monopoly on publication and tasking it with enforcing the charter. Those who violated the charter were labeled pirates as early as 1603.
SURROGACY: Obsevations of Law Commission OF India (228th Report)
India is becoming an economic superpower, supported in part by its huge outsourcing industry. One sliver of this is “reproductive outsourcing”, more commonly known as surrogacy. Commercial surrogacy has been legal in India since 2002.
The legal aspects surrounding surrogacy are very complex and mostly unsettled. There is a default legal assumption in most countries that the woman giving birth to a child is that child's legal mother. In some jurisdictions the possibility of surrogacy has been allowed and the intended parents may be recognized as the legal parents from birth. Many states now issue pre-birth orders through the courts placing the name(s) of the intended parent(s) on the birth certificate from the start. In others the possibility of surrogacy is either not recognized (all contracts specifying different legal parents are void), or is prohibited.
The Law Commission of India has submitted the 228th Report on “NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY .” The following observations had been made by the Law Commission:
[1] Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.
[2] A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
[3] A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
[4] One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.
[5] Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.
[6] The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
[7] Right to privacy of donor as well as surrogate mother should be protected.
[8] Sex-selective surrogacy should be prohibited.
[9] Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.
The Report has come largely in support of the Surrogacy in India, highlighting a proper way of operating surrogacy in Indian conditions. Exploitation of the women through surrogacy is another worrying factor which the law has to address. Also, commercialization of surrogacy is something that has been issue in the mind of the Law Commission. However, this is a great step forward to the present situation. We can expect a legislation to come by early 2010.
There is an upcoming Assisted Reproductive Technology Bill, aiming to regulate the surrogacy business. However, it is expected to increase the confidence in clinics by sorting out dubious practitioners, and in this way stimulate the practice.
The Law Commission of India has submitted the 228th Report on “NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY .” The following observations had been made by the Law Commission:
[1] Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.
[2] A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
[3] A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
[4] One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.
[5] Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.
[6] The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
[7] Right to privacy of donor as well as surrogate mother should be protected.
[8] Sex-selective surrogacy should be prohibited.
[9] Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.
The Report has come largely in support of the Surrogacy in India, highlighting a proper way of operating surrogacy in Indian conditions. Exploitation of the women through surrogacy is another worrying factor which the law has to address. Also, commercialization of surrogacy is something that has been issue in the mind of the Law Commission. However, this is a great step forward to the present situation. We can expect a legislation to come by early 2010.
There is an upcoming Assisted Reproductive Technology Bill, aiming to regulate the surrogacy business. However, it is expected to increase the confidence in clinics by sorting out dubious practitioners, and in this way stimulate the practice.
Abortion & Sex selection in INDIA
Two laws that prohibit the sex selection of a fetus in India are the Medical Termination of Pregnancy Act, 1971 (MTP), as amended in 2002, and the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT), as amended in 2002. The former Act prohibits abortion except only in certain qualified situations, while the latter prohibits the sex selection of a fetus with a view towards aborting it.
ABORTION is the termination of pregnancy by any method before the foetus (less than 20 weeks of pregnancy) is sufficiently developed to survive independently. Generally, abortion is classified into two categories - spontaneous, and induced. Available records reveal that approximately 46 million abortions happen every year globally, at the rate of 126,000 abortions per day. 78 per cent of all abortions are done in developing countries, while 22 per cent occur in developed countries. While 64.4 per cent of all abortions are performed on unmarried women, married women account for 18.4 per cent of all abortions.
The status of abortion laws in most countries is unclear. The most restrictive laws allow abortion to be performed to save the life of the woman and to preserve her physical health; the most liberal law (like Western Australia) allows abortion on request. In the Criminal Law of the Marshall Islands and the Federated States of Micronesia, there are no abortion provisions. It is possible that local customary law governs abortion in both of these countries.
In India, the Medical Termination of Pregnancy (MTP) Act was enacted by the Indian Parliament in 1971, and it came into force from April 1, 1972 (it was later revised in 1975). Abortions are a major cause of maternal morbidity and mortality in India. Because most of the abortions are not reported, and sex selective abortions are being carried out secretly, the statistics of abortions in India are of varying reliability. The available statistics are grossly inadequate, as hospitals keep records of only legal and reported abortions.
Every year, an average of about 11 million abortions take place, and around 20,000 women die every year due to abortion related complications. Most abortion related maternal deaths are attributable to illegal abortions.
The laws of India do not permit abortion. The Medical Termination of Pregnancy Act, 1971 (MTP) Act, which prohibits abortion, was enacted with a view towards containing the size of the family. However, in some cases the desire for a small family may have outweighed the desire for a child of a specific gender, leading to abortions where the sex of the fetus was different from that desired by the family. The MTP Act stipulated that an abortion may lawfully be done in qualified circumstances. But the unscrupulous connived to misuse the law to have abortions conducted for the purpose of sex selection.
Later, innovative technologies made sex selection easier, and without the regulations to control the use of such technologies, these technologies began to be misused for sex-selective abortions. These actions necessitated enactment of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT) in 1994. This act was amended in 2002 in an effort to close loopholes contained in the original act.
Medical Termination of Pregnancy (MTP) Act
Under the Indian Penal Code, causing an abortion, even if caused by the pregnant woman herself, is a criminal offense, unless it is done to save the life of the woman. The offense is punishable by imprisonment for a period of three years, by fine, or by both.[
The MTP Act provides for an abortion to be performed by a registered medical practitioner in a government hospital provided, in his opinion;
• continuance of the pregnancy, (which at the time must not exceed twelve weeks and);
• involves a risk to the life of the woman or a grave injury to her physical or mental health; or,
• there is a substantial risk that the child, when born, would suffer such physical or mental abnormalities as to be seriously handicapped.
Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994
The PNDT Act of 1994, later amended in 2002, was enacted with the objective as stated in the preamble ;
…to provide for the prohibition of sex selection, before or after conception, and for regulation of pre-natal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female feticide and for matters connected therewith or incidental thereto.
Thus, the PNDT Act prohibits the use of all technologies for the purpose of sex selection, which would also include the new chromosome separation techniques.
The PNDT Act primarily provides for the following:
• Prohibition of sex selection, before and after conception.
• Regulation of prenatal diagnostic techniques (e.g., amniocentesis and ultrasonography) for the detection of genetic abnormalities, by restricting their use to registered institutions. The Act allows the use of these techniques only at a registered place, for a specified purpose, and by a qualified person who is registered for the purpose.
• Prevention of the misuse of such techniques for sex selection, before or after conception.
• Prohibition of the advertisement of any techniques used for sex selection as well as those used for sex determination.
• Prohibition on the sale of ultrasound machines to persons not registered under this Act.
• Punishment for violations of the Act. Violations carry a five-year jail term and a fine of approximately US $200-$1,000. All offenses are cognizable when police may arrest without a warrant. They are also non-bailable and non-compoundable.
Indian laws do not, under any circumstance, allow sex determination tests to be undertaken with the intent to terminate the life of a fetus developing in the mother’s womb, unless there are other absolute indications for termination of the pregnancy as specified in the MTP Act of 1971. Any act causing the termination of the pregnancy of a normal fetus would amount to feticide, and in addition to rendering the physician criminal liable, is considered professional misconduct on his part, leading to his penal erasure.
For more information on India see:
• Global Legal Monitor: India
• Guide to Law Online: India
Information collected from the article of Krishan S. Nehra, Senior Foreign Law Specialist
ABORTION is the termination of pregnancy by any method before the foetus (less than 20 weeks of pregnancy) is sufficiently developed to survive independently. Generally, abortion is classified into two categories - spontaneous, and induced. Available records reveal that approximately 46 million abortions happen every year globally, at the rate of 126,000 abortions per day. 78 per cent of all abortions are done in developing countries, while 22 per cent occur in developed countries. While 64.4 per cent of all abortions are performed on unmarried women, married women account for 18.4 per cent of all abortions.
The status of abortion laws in most countries is unclear. The most restrictive laws allow abortion to be performed to save the life of the woman and to preserve her physical health; the most liberal law (like Western Australia) allows abortion on request. In the Criminal Law of the Marshall Islands and the Federated States of Micronesia, there are no abortion provisions. It is possible that local customary law governs abortion in both of these countries. In India, the Medical Termination of Pregnancy (MTP) Act was enacted by the Indian Parliament in 1971, and it came into force from April 1, 1972 (it was later revised in 1975). Abortions are a major cause of maternal morbidity and mortality in India. Because most of the abortions are not reported, and sex selective abortions are being carried out secretly, the statistics of abortions in India are of varying reliability. The available statistics are grossly inadequate, as hospitals keep records of only legal and reported abortions.
Every year, an average of about 11 million abortions take place, and around 20,000 women die every year due to abortion related complications. Most abortion related maternal deaths are attributable to illegal abortions.
The laws of India do not permit abortion. The Medical Termination of Pregnancy Act, 1971 (MTP) Act, which prohibits abortion, was enacted with a view towards containing the size of the family. However, in some cases the desire for a small family may have outweighed the desire for a child of a specific gender, leading to abortions where the sex of the fetus was different from that desired by the family. The MTP Act stipulated that an abortion may lawfully be done in qualified circumstances. But the unscrupulous connived to misuse the law to have abortions conducted for the purpose of sex selection.
Later, innovative technologies made sex selection easier, and without the regulations to control the use of such technologies, these technologies began to be misused for sex-selective abortions. These actions necessitated enactment of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT) in 1994. This act was amended in 2002 in an effort to close loopholes contained in the original act.
Medical Termination of Pregnancy (MTP) Act
Under the Indian Penal Code, causing an abortion, even if caused by the pregnant woman herself, is a criminal offense, unless it is done to save the life of the woman. The offense is punishable by imprisonment for a period of three years, by fine, or by both.[
The MTP Act provides for an abortion to be performed by a registered medical practitioner in a government hospital provided, in his opinion;
• continuance of the pregnancy, (which at the time must not exceed twelve weeks and);
• involves a risk to the life of the woman or a grave injury to her physical or mental health; or,
• there is a substantial risk that the child, when born, would suffer such physical or mental abnormalities as to be seriously handicapped.
Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994
The PNDT Act of 1994, later amended in 2002, was enacted with the objective as stated in the preamble ;
…to provide for the prohibition of sex selection, before or after conception, and for regulation of pre-natal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female feticide and for matters connected therewith or incidental thereto.
Thus, the PNDT Act prohibits the use of all technologies for the purpose of sex selection, which would also include the new chromosome separation techniques.
The PNDT Act primarily provides for the following:
• Prohibition of sex selection, before and after conception.
• Regulation of prenatal diagnostic techniques (e.g., amniocentesis and ultrasonography) for the detection of genetic abnormalities, by restricting their use to registered institutions. The Act allows the use of these techniques only at a registered place, for a specified purpose, and by a qualified person who is registered for the purpose.
• Prevention of the misuse of such techniques for sex selection, before or after conception.
• Prohibition of the advertisement of any techniques used for sex selection as well as those used for sex determination.
• Prohibition on the sale of ultrasound machines to persons not registered under this Act.
• Punishment for violations of the Act. Violations carry a five-year jail term and a fine of approximately US $200-$1,000. All offenses are cognizable when police may arrest without a warrant. They are also non-bailable and non-compoundable.
Indian laws do not, under any circumstance, allow sex determination tests to be undertaken with the intent to terminate the life of a fetus developing in the mother’s womb, unless there are other absolute indications for termination of the pregnancy as specified in the MTP Act of 1971. Any act causing the termination of the pregnancy of a normal fetus would amount to feticide, and in addition to rendering the physician criminal liable, is considered professional misconduct on his part, leading to his penal erasure.
For more information on India see:
• Global Legal Monitor: India
• Guide to Law Online: India
Information collected from the article of Krishan S. Nehra, Senior Foreign Law Specialist
The Mental Health Act,1987 - An Overview
THE MENTAL HEALTH ACT, 1987
An Act to consolidate and amend the law relating to the treatment and care of mentally ill persons, to make better provision with respect to their properly and affairs and for matters connected therewith or incidental thereto.
It is well settled that when the language of the statute is clear and admits of no ambiguity, recourse to the Statement of Objects and Reasons for the purpose of construing a statutory provision is not permissible. Court must strive to so interpret the statute as to protect and advance the object and purpose of the enactment. Any narrow or technical interpretation of the provisions would defeat the legislative policy. The Court must, therefore, keep the legislative policy in mind in applying the provisions of the Act to the facts of the case2.
The law is well settled that though the Statement of objects and Reasons accompanying a legislative bill could not be used to determine the true meaning and effect of the substantive provisions of a statute, it was permissible to refer to the same for the purpose of understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the statute, and the evil which the statute sought to remedy.
STATEMENT OF OBJECTS AND REASONS OF ACT 14 of 1987
1. The attitude of the society towards persons afflicted with mental illness has changed considerably and it is now realised that no stigma should be attached to such illness as it is curable, particularly, when diagnosed at an early stage. Thus the mentally ill persons are to be treated like any other sick persons and the environment around them should be made as normal as possible.
2. The experience of the working of Indian Lunacy Act, 1912 ( 4 of 1912) has revealed that it has become out-moded. With the rapid advance of medical science and the understanding of the nature of malady, it has become necessary to have fresh legislation with provisions for treatment of mentally ill persons in accordance with the new approach.
3. It is considered necessary -
I. to regulate admission to psychiatric hospitals or psychiatric nursing homes of mentally ill-persons who do not have sufficient understanding to seek treatment on a voluntary basis, and to protect the rights of such persons while being detained;
II. To protect society from the presence of mentally ill persons who have become or might become a danger or nuisance to others;
III. To protect citizens from being detained in psychiatric hospitals or psychiatric nursing homes without sufficient cause;
IV. To regulate responsibility for maintenance charges of mentally ill persons who are admitted to psychiatric hospitals or psychiatric nursing homes;
V. To provide facilities for establishing guardianship or custody of mentally ill persons who are incapable of managing their own affairs;
VI. To provide for the establishment of Central Authority and State Authorities for Mental Health Services;
VII. To regulate the powers of the Government for establishing, licensing and controlling psychiatric hospitals and psychiatric nursing homes for mentally ill persons;
VIII. To provide for legal aid to mentally ill persons at State expense in certain cases.
4. The main object of the Bill is to implement the aforesaid proposals.
PREAMBLE
- It is established law that preamble discloses the primary intention of the statute but does override the express provisions of the statute. Although a preamble of a statute is a key to interpretation of the provisions of the Act, but the intention of Legislature is not necessarily to be gathered from the preamble taken by itself, but to be gathered from the provisions of the Act. Where the language of the Act is clear, the preamble cannot be a guide, but where the object or meaning of the provisions of the Act is not clear then an aid from the preamble can be taken into consideration for purpose of explaining the provisions of the Act.
It is now well settled that the preamble of a statutory instrument cannot control the express clear language and sweep of the operating provisions of such an instrument. Nor can the express language of a statutory provision be curtailed or read down in the light of the preamble in the absence of any ambiguity in the enacted provisions.
RIGHTS OF THE DISABLED WHO ARE MENTALLY ILL
Under the Mental Health Act, 1987 mentally ill persons are entitled to the following rights :-
1. A right to be admitted, treated and taken care of in a Psychiatric hospital or Psychiatric nursing home or convalescent home established or maintained by the Government or any other person for the treatment and care of mentally ill persons. (other than general hospitals , or nursing homes of the Government).
2. Even mentally ill prisoners and minors have a right of treatment in Psychiatric hospitals or Psychiatric nursing homes of the Government.
3. Minors who are under the age of 16 years, those persons who are addicted to alcohol or other drugs which lead to behavioral changes and those convicted of any offence are , entitled to admission, treatment and care in separate Psychiatric hospitals or nursing , homes established or maintained by the Government.
4. Mentally ill persons have the right to have regulated, directed and co-ordinated mental health services from the Government which through the Central Authority and the State Authorities set up under the Act have the responsibility of such regulation and issue of licenses for establishing and maintaining Psychiatric hospitals and nursing homes.
5. Treatment at Government hospitals and nursing homes mentioned above can be had either as in patient or as out-patients.
6. Mentally ill persons can seek voluntary admission in such hospitals or nursing homes and minors can seek admission through their guardians. Admission can be sought for by relatives of mentally ill persons on behalf of the latter. Applications can also be made to the local magistrate for grant of reception orders.
7. The police have an obligation to take into protective custody a wandering or neglected mentally ill person and inform his relative and have to produce such person before the local magistrate for issue of reception orders.
8. Mentally ill persons have the right to be discharged when cured and entitled to 'leave' in accordance with the provisions in the Act.
9. Where mentally ill persons own properties including land which they cannot themselves manage, the District Court upon application has to protect and secure the management of such properties by entrusting the same to a Court of Wards, by appointing guardians of such mentally ill persons or appointment of managers of such property.
10. The costs of maintenance of mentally ill persons detained as in-patient in any Government Psychiatric hospital or nursing home shall be borne by the State Government concerned unless such costs have been agreed to be borne by the relative or other person on behalf of the mentally ill person and Do provision for such maintenance has been made by order of the District Court. Such costs can also be borne out of the estate of the mentally ill person.
11. Mentally ill persons undergoing treatment shall not be subjected to any indignity (whether physical or mental) or cruelty. Nor can such mentally ill person be used for purposes of research except for his diagnosis or treatment or with his consent.
12. Mentally ill persons who are entitled to any pay, pension, gratuity or any allowance from the Government (such as Government servants who become mentally ill during their tenure) are not to be denied such payments. The person who is in-charge of such mentally ill person or his dependants will receive such payments after the Magistrate has certified the same.
13. A mentally ill person shall be entitled to the services of legal practitioner by order of the Magistrate or District Court if he has no means to engage a legal practitioner or his circumstances so warrant in respect of proceedings under the Act.
Informations collected from The Mental Health Act,1987 and Rehabilitation Council of India
An Act to consolidate and amend the law relating to the treatment and care of mentally ill persons, to make better provision with respect to their properly and affairs and for matters connected therewith or incidental thereto.
It is well settled that when the language of the statute is clear and admits of no ambiguity, recourse to the Statement of Objects and Reasons for the purpose of construing a statutory provision is not permissible. Court must strive to so interpret the statute as to protect and advance the object and purpose of the enactment. Any narrow or technical interpretation of the provisions would defeat the legislative policy. The Court must, therefore, keep the legislative policy in mind in applying the provisions of the Act to the facts of the case2.
The law is well settled that though the Statement of objects and Reasons accompanying a legislative bill could not be used to determine the true meaning and effect of the substantive provisions of a statute, it was permissible to refer to the same for the purpose of understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the statute, and the evil which the statute sought to remedy.
STATEMENT OF OBJECTS AND REASONS OF ACT 14 of 1987
1. The attitude of the society towards persons afflicted with mental illness has changed considerably and it is now realised that no stigma should be attached to such illness as it is curable, particularly, when diagnosed at an early stage. Thus the mentally ill persons are to be treated like any other sick persons and the environment around them should be made as normal as possible.
2. The experience of the working of Indian Lunacy Act, 1912 ( 4 of 1912) has revealed that it has become out-moded. With the rapid advance of medical science and the understanding of the nature of malady, it has become necessary to have fresh legislation with provisions for treatment of mentally ill persons in accordance with the new approach.
3. It is considered necessary -
I. to regulate admission to psychiatric hospitals or psychiatric nursing homes of mentally ill-persons who do not have sufficient understanding to seek treatment on a voluntary basis, and to protect the rights of such persons while being detained;
II. To protect society from the presence of mentally ill persons who have become or might become a danger or nuisance to others;
III. To protect citizens from being detained in psychiatric hospitals or psychiatric nursing homes without sufficient cause;
IV. To regulate responsibility for maintenance charges of mentally ill persons who are admitted to psychiatric hospitals or psychiatric nursing homes;
V. To provide facilities for establishing guardianship or custody of mentally ill persons who are incapable of managing their own affairs;
VI. To provide for the establishment of Central Authority and State Authorities for Mental Health Services;
VII. To regulate the powers of the Government for establishing, licensing and controlling psychiatric hospitals and psychiatric nursing homes for mentally ill persons;
VIII. To provide for legal aid to mentally ill persons at State expense in certain cases.
4. The main object of the Bill is to implement the aforesaid proposals.
PREAMBLE
- It is established law that preamble discloses the primary intention of the statute but does override the express provisions of the statute. Although a preamble of a statute is a key to interpretation of the provisions of the Act, but the intention of Legislature is not necessarily to be gathered from the preamble taken by itself, but to be gathered from the provisions of the Act. Where the language of the Act is clear, the preamble cannot be a guide, but where the object or meaning of the provisions of the Act is not clear then an aid from the preamble can be taken into consideration for purpose of explaining the provisions of the Act.
It is now well settled that the preamble of a statutory instrument cannot control the express clear language and sweep of the operating provisions of such an instrument. Nor can the express language of a statutory provision be curtailed or read down in the light of the preamble in the absence of any ambiguity in the enacted provisions.
RIGHTS OF THE DISABLED WHO ARE MENTALLY ILL
Under the Mental Health Act, 1987 mentally ill persons are entitled to the following rights :-
1. A right to be admitted, treated and taken care of in a Psychiatric hospital or Psychiatric nursing home or convalescent home established or maintained by the Government or any other person for the treatment and care of mentally ill persons. (other than general hospitals , or nursing homes of the Government).
2. Even mentally ill prisoners and minors have a right of treatment in Psychiatric hospitals or Psychiatric nursing homes of the Government.
3. Minors who are under the age of 16 years, those persons who are addicted to alcohol or other drugs which lead to behavioral changes and those convicted of any offence are , entitled to admission, treatment and care in separate Psychiatric hospitals or nursing , homes established or maintained by the Government.
4. Mentally ill persons have the right to have regulated, directed and co-ordinated mental health services from the Government which through the Central Authority and the State Authorities set up under the Act have the responsibility of such regulation and issue of licenses for establishing and maintaining Psychiatric hospitals and nursing homes.
5. Treatment at Government hospitals and nursing homes mentioned above can be had either as in patient or as out-patients.
6. Mentally ill persons can seek voluntary admission in such hospitals or nursing homes and minors can seek admission through their guardians. Admission can be sought for by relatives of mentally ill persons on behalf of the latter. Applications can also be made to the local magistrate for grant of reception orders.
7. The police have an obligation to take into protective custody a wandering or neglected mentally ill person and inform his relative and have to produce such person before the local magistrate for issue of reception orders.
8. Mentally ill persons have the right to be discharged when cured and entitled to 'leave' in accordance with the provisions in the Act.
9. Where mentally ill persons own properties including land which they cannot themselves manage, the District Court upon application has to protect and secure the management of such properties by entrusting the same to a Court of Wards, by appointing guardians of such mentally ill persons or appointment of managers of such property.
10. The costs of maintenance of mentally ill persons detained as in-patient in any Government Psychiatric hospital or nursing home shall be borne by the State Government concerned unless such costs have been agreed to be borne by the relative or other person on behalf of the mentally ill person and Do provision for such maintenance has been made by order of the District Court. Such costs can also be borne out of the estate of the mentally ill person.
11. Mentally ill persons undergoing treatment shall not be subjected to any indignity (whether physical or mental) or cruelty. Nor can such mentally ill person be used for purposes of research except for his diagnosis or treatment or with his consent.
12. Mentally ill persons who are entitled to any pay, pension, gratuity or any allowance from the Government (such as Government servants who become mentally ill during their tenure) are not to be denied such payments. The person who is in-charge of such mentally ill person or his dependants will receive such payments after the Magistrate has certified the same.
13. A mentally ill person shall be entitled to the services of legal practitioner by order of the Magistrate or District Court if he has no means to engage a legal practitioner or his circumstances so warrant in respect of proceedings under the Act.
Informations collected from The Mental Health Act,1987 and Rehabilitation Council of India
Sunday, January 3, 2010
Don’t just carry helmets, wear it
"""When the traffic police gets serious with wearing helmets, its not to make us to buy the helmets and to show them just by carrying it in our hands or above the petrol tanks. What is the point in carrying it? The main thing is to save our lives. So all two-wheeler riders should wear helmets."""
"""When the traffic police gets serious with wearing helmets, its not to make us to buy the helmets and to show them just by carrying it in our hands or above the petrol tanks. What is the point in carrying it? The main thing is to save our lives. So all two-wheeler riders should wear helmets."""
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