Subject-Health Law

SEMESTER- 3YR V SEM

1. “The Indian Constitution defines the right to health as “the enjoyment of the highest
attainable standard of health”- Discuss in the light of Part III and Part IV of Indian
Constitution with the help of decided case laws.
2. What is the legal provision relation to HIV/AIDS in India? What are the rights and duties
HIV/AIDS patients?
3. Explain medical negligence and remedies available in case of medical negligence.
Explain the liabilities of doctors in case of medical negligence.
4. Explain Negligence by Professional and Negligence by Medical Professional with the
help of Jacob Mathew‟s Case (Jacob Mathew vs. State of Punjab 2005 Cri LJ 3710).
5. Discuss Bhopal gas leak case and its impact on Indian Legal System.
6. Describe Health policy and its development in India.
7. Write a note on mental illness and discuss the preventive measures that could be adopted
for the prevention of mental illness in the light of Mental Health Act, 1987. Discuss
doctor-patient relationship.
8. What are the treatments for those who are addicted to drugs?
9. What directions were given by the Supreme Court in the case of MC Mehta vs. Union of
India (AIR 1987 SC 1086).
10. Write a note on Autopsy and Post-mortem examination.
11. Write a note on Exhumation and different modes of death.
12. Define Medical Jurisprudence and its importance.
13. What is bio-medical waste? What are the rules and regulations governing disposal of
surgical waste.
1. Elucidate with the help of case law the Inclusion of Right to Health under-
Article 21of the Indian Constitution.

Constitution and the Right to Health

The Constitution of India does not expressly guarantee a fundamental right to health.
However, there are multiple references in the Constitution to public health and on the
role of the State in the provision of healthcare to citizens.

Article 21 reads:

“No person shall be deprived of his life or personal liberty except according to
a procedure established by law.”
In Francis Coralie Mullin vs The Administrator (1981), Justice P. Bhagwati
had said that Article 21 ’embodies a constitutional value of supreme importance
in a democratic society’. Further, Justice Iyer characterised Article 21 as ‘the
procedural Magna Carta protective of life and liberty’.
Article 21 is at the heart of the Constitution. It is the most organic and
progressive provision in our living Constitution. Article 21 can only be claimed
when a person is deprived of his ‘life or ‘personal liberty’ by the ‘State’ as
defined in Article 12. Thus, violation of the right by private individuals is not
within the preview of Article 21.

Article 21 secures two rights:

1) Right to life, and
2) Right to personal liberty.
It prohibits the deprivation of the above rights except according to a procedure
established by law. Article 21 corresponds to the Magna Carta of 1215, the Fifth
Amendment to the American Constitution, Article 40(4) of Eire 1937, and
Article XXXI of the Constitution of Japan, 1946.
Article 21:

According to Article 21 of the Constitution of India “no person shall

be deprived of his/her life or personal liberty except according to the
procedure established by law. Right to life under Article 21 of the
Constitution has been generously deciphered to mean something more
than only human presence and incorporates the right to live with
nobility and conventionality. The use of word ‘Life’ in Article 21 of
the Constitution has a lot more extensive importance which includes
human nobility, the right to livelihood, right to health, right to
pollution free air, and so forth.

In Bandhua Mukti Morcha v. Union of India, AIR 1984 SC

802 case, Bhagwati, J. observed: “This right to live with human
dignity enshrined in Article 21 derives its life breath from the
Directive Principles of State Policy and Particularly clauses (e) and (f)
of Article 39 and Article 41 and 42.” Since the Directive Principles of
State Policy are not enforceable in a Court of law, it may not be
possible to compel the State through judicial process to make
provision by statutory enactment or executive fiat for ensuring these
basic essentials which go on to ensure a life of human dignity.

In Paschim Banga Khet Mazdoor Samity v. State of West Bengal,

(1996) 4 SCC 37 case, while widening the scope of Article 21 and the
government’s responsibility to provide medical aid to every person in
the country, the Apex Court held that in a welfare state, the primary
duty of the government is to secure the welfare of the people.
Providing adequate medical facilities for the people is an obligation
undertaken by the government in a welfare state. The government
discharges this obligation by providing medical care to the persons
seeking to avail of those facilities.

In Unnikrishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC

2178 case, the Court held that the maintenance and improvement of
public health is the duty of the State to fulfill its constitutional
obligations cast on it under Article 21 of the Constitution.

In the State of Punjab v. M.S. Chawla, AIR 1997 SC1225 case, the
Court held that-the right to life ensured under Article 21 incorporates
inside its ambit the right to health and clinical consideration.
in Consumer Education and Research Center v. Union of
India, AIR 1995 SC 922 case, the Supreme Court held that right
to health, medical aid to protect the health and vigour of a worker
while in service or postretirement is a fundamental right under Article
21.

2. Describe the need of a health policy and explain the development of health
policy in India over the years.

National Health Policy was launched in 2017 by the Central Government to replace the
existing health policy. This policy has introduced four significant goals:

1. Changing health priorities

This policy aims to tackle the increasing non-communicable and infectious diseases in
India.

1. Growth of the health care industry

National Health Policy plans to strengthen the health care industry by introducing newer
and more advanced technologies.

1. Lower the expenditure

This policy also aims to reduce medical expenses and other health-related costs. They
aim to provide superior services to poor and backward communities.

1. Economic growth

It aims to enhance fiscal capacity by boosting economic growth.

Individuals preparing for the UPSC prelims and IAS exams should know the goals set
by this initiative.

What are the Objectives of National Health Policy?

The National Health Policy aims to achieve the following goals:

 It aims to offer superior health services to every age group and gender.
  The policy focuses on providing universal access to excellent quality health care services at
a reasonable cost.
 Promoting health care orientation in every developmental policy.
 Offering access to better treatment, lowering expenses related to health care services and
improving quality.
 It aims to reduce premature mortality from cancer, cardiovascular diseases, chronic
respiratory diseases and diabetes by 25% within 2025.
 This policy recognises the importance of sustainable development and time-bound
quantitative goals.
 National Health Policy in India improves overall health status through promotive, palliative,
and rehabilitative services.

National Health Policy aims for the development of social capital and to
protect the health interest of Indian population. Health Policy supplemented
by Ayushman Bharat Abhiyan and Ayushman Bharat Health Infrastructure
Mission is an important step towards sustainable development of country and
to counter the emerging health crises.

Various health care policies

National Health Policy 1983 -Indira Gandhi Government

 The Ministry of Health and Family Welfare, Govt. of India, initiated

India’s first National Health Policy in 1983 i.e. 36 years after
independence. It continued till 2002.
 The policy emphasized on preventive, promotive public health and
rehabilitation aspects of healthcare.
 The policy stresses the need of establishing comprehensive primary
health care services to reach the population in the remote area of the
country.

Objectives of NHP 1983

 A phased, time-bound programme for setting up a well-

dispersed network of comprehensive primary health care services,
linked with extension and health education, designed in the context of
the ground reality that elementary health problems can be resolved by
the people themselves.
 Intermediation through ‘Health volunteers’ having appropriate
knowledge, simple skills and requisite technologies;
  Establishment of a well worked out referral system to ensure that
patient load at the higher levels of the hierarchy is not needlessly
burdened by those who can be treated at the decentralized level;
 An integrated net-work of evenly spread specialty and super-specialty
services; encouragement of such facilities through private investments
for patients who can pay, so that the draw on the Government’s facilities
is limited to those entitled to free use.

NATIONAL HEALTH POLICY-2002 by Atal Bihari Vajpayee Government

 A revised health policy for achieving better health care and unmet goals
has been brought out by government of India- National Health Policy
2002.

Objectives of NHP 2002

 Primary Health Care Approach

 Decentralized public health system
 Convergence of all health programme under single field umbrella
 Strengthening and extending public health services.
 Enhanced contribution of private and NGO sector in health care delivery.
 Increase in public spending for health care.

National Health Policy 2017 by Narendra Modi Government

Aiming to provide healthcare in an “assured manner” to all, the NHP 2017
strives to address current and emerging challenges arising from the ever-
changing socio-economic, technological and epidemiological scenarios.

Features

 The policy advocates a progressively incremental assurance-based

approach.
 It denotes an important change towards a comprehensive primary
health care package which includes care for major NCDs (non-
communicable diseases), mental health, geriatric health care, palliative
care and rehabilitative care services.
 It envisages providing larger package of assured comprehensive
primary health care through the ‘Health and Wellness Centres’
  The policy proposes free drugs, free diagnostics and free emergency
and essential health care services in all public hospitals in a bid to
provide access and financial protection.
 It also envisages a three-dimensional integration of AYUSH
systems encompassing cross referrals, co-location and integrative
practices across systems of medicines.
 It also seeks an effective grievance redressal mechanism.
 Health Expenditure: The policy proposes raising public health
expenditure to 2.5% of the GDP by 2025.

Targets:

 To increase life expectancy at birth from 67.5 to 70 by 2025 and reduce

infant mortality rate to 28 by 2019.
 To reduce mortality of children under-five years of age to 23 by the year
2025.
 To allocate a major proportion of resources to primary care and intends
to ensure availability of two beds per 1,000 population distributed in a
manner to enable access within golden hour (the first hour after
traumatic injury, when the victim is most likely to benefit from
emergency treatment).
 To achieve the global 2020 HIV target under 90-90-90 UNAIDS Target
according to which by 2020,
 90% of all people living with HIV will know their HIV status.
 90% of all people with diagnosed HIV infection will receive sustained
antiretroviral therapy.
 90% of all people receiving antiretroviral therapy will have viral
suppression.
Ayushman Bharat Scheme

 It is to address health issues at all levels - primary, secondary and

tertiary. It is the largest Govt funded Healthcare program of World with
~ 50 crore beneficiaries.
 It is an integrated approach comprising of health insurance.

Key Features

 The government-sponsored health insurance scheme will provide free

coverage of up to Rs 5 lakh per family per year at any government or
 even empanelled private hospitals all over India for secondary and
tertiary medical care facilities.
 Modicare will be available for 74 crore beneficiary families and about
50 crore Indian citizens. Under the process, 80 percent of
beneficiaries, based on the Socio-Economic Caste Census (SECC)
data in the rural and the urban areas, have been identified.
 There is no restriction on the basis of family size, age or gender.
 The benefit cover includes both pre and post hospitalization
expenses.
 The expenditure incurred in premium payment will be shared between
Central and State Governments in a specified ratio. The funding for the
scheme will be shared – 60:40 for all states and UTs with their own
legislature, 90:10 in Northeast states and three Himalayan states of
Jammu and Kashmir, Himachal and Uttarakhand and 100% Central
funding for UTs without legislature.
 The NHPS will draw additional resources from the Health and
Education Cess and also depend on funding from States to boost the
Central allocation. The premiums are expected to be in the range of `Rs
1,000 – ` 1,200 per annum.
 The NHPM (National Health Protection Mission) will pay for the
hospitalisation costs of its beneficiaries through strategic purchasing
from public and private hospitals.

Components of PMJAY

 Health and Wellness Centers (for Primary healthcare)

1. 1.5 lakh HWCs by converting existing PHC and subcenters.

2. They are based on preventive care concept. They provide
comprehensive primary health care (CPHC) including child and
maternal health services, NCDs, and also diagnostic services and free
essential drugs.

 PM Jan Arogya Yojana aka National Health Protection Scheme (For

secondary and tertiary care)

1. It is the largest insurance program of the World. Beneficiaries to get

cashless treatment from any empanelled hospital (both public and
private).
 2. It will give insurance cover of Rs. 5 lakh per year per family to 10 crore
families based on SECC database.
3. It includes pre and post hospitalization expenses. It covers all pre-
existing conditions. Transport allowance included.
4. It focuses on Cooperative Federalism and Flexibility to States. States
would need to have State Health Agency to implement it.
5. AB-PMJAY is a completely cashless and paperless scheme.
6. The benefits under AB-PMJAY are portable across the country.
7. There is no cap on family size, or age or gender.

3. The Bhopal gas leak has provided a new prospective to the Industrial
Accidents and health law. Write a short note on Bhopal gas leak and its impact
upon the Indian legal system.

Bhopal Gas Tragedy

Union Carbide was an American company that produced pesticides. MIC –
methyl isocyanide, a dangerous poisonous gas began to leak at midnight on
2nd December 1984 from the Union Carbide factory. This MIC caused the
Bhopal gas tragedy. The Bhopal gas tragedy was a fatal accident. It was
one of the world’s worse industrial accidents.

Effects of Bhopal Gas Tragedy

1. Thousands had died as a result of choking, pulmonary edema, and
reflexogenic circulatory collapse.
2. Neonatal death rates increased by 200 percent.
3. A huge number of animal carcasses have been discovered in the area,
indicating the impact on flora and animals. The trees died after a few
days. Food supplies have grown scarce due to the fear of contamination.
4. Fishing was also prohibited.
5. In March 1985, the Indian government established the Bhopal Gas Leak
Accident Act, giving it legal authority to represent all victims of the
accident, whether they were in India or abroad.
6. At least 200,000 youngsters were exposed to the gas.
7. Hospitals were overcrowded, and there was no sufficient training for
medical workers to deal with MIC exposure.
Aftermath of Bhopal Gas Tragedy
In the United States, UCC was sued in federal court. In one action, the court
recommended that UCC pay between $5 million and $10 million to assist the
victims. UCC agreed to pay a $5 million settlement. The Indian government,
however, rejected this offer and claimed $3.3 billion. In 1989, UCC agreed to
pay $470 million in damages and paid the cash immediately in an out-of-
court settlement.
Warren Anderson, the CEO and Chairman of UCC was charged with
manslaughter by Bhopal authorities in 1991. He refused to appear in court
and the Bhopal court declared him a fugitive from justice in February 1992.
Despite the central government’s efforts in the United States to extradite
Anderson, nothing happened. Anderson died in 2014 without ever appearing
in a court of law.
Health Issues that led to Casualties –

o Back in 1984, Bhopal had a population of almost 8.5 lakh people and more than half of
the population was coughing up, complaining of itchy eyes, skin rashes, and breathing
problems.
o On that fateful day, the alarm system of the Union Carbide industrial unit did not work,
and thousands of people were seen running towards hospitals and nursing homes.
o Doctors and nurses had never seen such a situation and they were totally unaware of the
means of handling such large crowds.
o Officially, the government declared that the leak was contained in 8 hours, but the effects
of the leak are even seen till date.

 Public Liability Insurance Act (1991):

o Making it mandatory for industries to get insurance,
o The premium for this insurance would contribute to an Environment
Relief Fund to provide compensation to victims of a Bhopal-like
disaster.

Chemical Disaster:

 They are a by-product of industrialization.

 The Indian chemical industries comprise small, medium and large-scale
units.
 The chemical industry includes:
o basic chemicals and their intermediates
o petrochemicals
o fertilizers, paints, pesticides
o bulk drugs and pharmaceuticals(most diversified industrial sectors)
Rules governing the safety of the workers employed in factories and industries:

 Indian Factories Act, 1948.

 The Dock Workers (Safety, Health & Welfare) Act, 1986.
 These legislations regulate the working conditions of individuals
employed at sites of industrial activity and prescribe rules for the
maintenance of site safety.
 Labour codes.

4. Explain the liability of Doctor under the Consumer Protection Act.

Medical Negligence
Medical negligence means failure to exercise reasonable skill in
accordance with the general norms and the prevailing situations. It
is also defined as lack of a reasonable degree of care and skill or
intentional negligence on the part of medical practitioners in the
treatment of a patient with whom the relationship of professional
assistants had been established in order to result in injury to the
body or permanent disability or loss of life. To prove negligence, the
victimized consumer must prove to the court the following
ingredients:

1. The doctor has violated the duty of care,

2. The doctor owed him the duty to take care of a particular
standard of professional conduct,
3. The patient (Plaintiff) suffered any injury as a result of the
infringement and caused actual damage, and the conduct of
the physician was directly and approximately the cause of
damage.
Doctor owes certain responsibilities to patients who visit him for
sickness or not feeling good, failure in duty results in neglect.
Violation of duty involves failure to perform what a good doctor
should do or what a rational doctor should not do, and though there
is damage, the damage will be the actual and direct consequence of
a breach of duty. It is now well established that the hospital and
physician providing medical services are covered by the Consumer
Protection Act, 1986. In the case of V. Kisan Rao v. Nikhil Super
Specialty Hospital[1] Maxim resipsaloqiter, it is applicable to cases
of medical negligence which give rise to a deficiency in medical
services under sec. 2(1)(g) in which case the complainant is
relieved of the obligation to prove anything else and the respondent
is liable for proof that he has taken care and caution in the case of
Maxim resipsaloqiter. In the case of neglect, the plaintiff may show
that the doctor did not have the obligation of care alone, nor that he
did not have the duty of care. Breach of duty to care means failure
to perform the duty that a reasonable doctor would perform. It is
also noted that, in the event of injury, the injury must be immediate
and direct result of an infringement of duty. Doctors are accused of
the death of patients without taking into account the limitations and
handicaps they have in the performance of their duties.

CIVIL LIABILITY OF MEDICAL

PROFESSIONALS
Those who have specialised knowledge, skill, and expertise in a particular field
and utilise that expertise to treat others owe the other person a duty of care if a
mistake is made while exercising that talent. As stated in the Laxman
Balakrishna Joshi Vs. Trimbak Bapu Godbole (3) case, a doctor "is not required
to employ the utmost possible degree of care, but he is expected to utilise a
reasonable, fair, and competent degree of expertise."

Liability of Medical Services

It is noted that medical services are well within the scope of the
Consumer Protection Act , 1986. By means of this Act, consumers
can protect their interests against service deficiency. This Act does
not specifically mention medical services, as referred to in Section
2(0) of the Consumer Protection Act, Services means services of
any description.
It shall be rendered accessible to prospective users and shall involve
the provision of facilities relating to banking, lending, insurance,
shipping, manufacturing, supply of electrical or other electricity,
boarding or lodging or both, accommodation, building,
entertainment or news or entertainment but does not include the
rendering of any service free of charge or under a personal service
contract.

The Consumer Forums have started to offer redress to the

aggrieved patients who have suffered from faulty medical care.
Lucknow Development Authrity v. M. K. Gupta[2] observed that the
term of ‘service’ has a number of interpretations, and that it can
imply some gain or act arising from the pursuit of the value of
happiness. They can be contractual, qualified, governmental, civil,
regulatory, etc. The definition of service is therefore rather broad. In
addition, any forum in which a case involving medical negligence is
tried in any jurisdiction must take into account at least the following
three considerations before taking a decision. These are the
following:

1. The method of lawful and disciplinary action must be strictly

initiated on firm, virtuous and scientific grounds.
2. Patients will be better treated if the actual causes of harm are
correctly identified and properly addressed.
3. Numerous incidents involve the contribution of more than one
person, and it is more likely to hold the last discernible
element in the chain of causation accountable and, in
particular, to accuse that person of holding a ‘smoking gun.’
Conclusion
The Consumer Rights Act safeguards the needs of customers. It
provides for a simplified procedure for the resolution of consumer
complaints. By way of this Act, customers will defend their rights
against service deficiencies. The Act provides a forum for victims of
negligence or deficiency in medical services by providing cheap,
prompt and effective remedies. The judges acknowledged that the
judicial framework would do good to all patients and physicians. At
the same time, consideration should be given to the fear of the
medical profession and the legitimate claims of the patient.

5. Define Medical negligence and the Remedies available in the case of Medical
negligence.

We can define ‘Medical negligence’ as the improper or unskilled treatment of

a patient by a medical practitioner. This includes negligence in taking care
from a nurse, physician, surgeon, pharmacist, or any other medical
practitioner. Medical negligence leads to ‘Medical malpractices’ where the
victims suffer some sort of injury from the treatment given by a doctor or
any other medical practitioner or health care professional.

Examples of medical negligence

Some examples of medical negligence are as follows:

 improper administration of medicines.

 performing the wrong or inappropriate type of surgery.
 not giving proper medical advice.
 leaving any foreign object in the body of the patient such as a
sponge or bandage, etc. after the surgery.

WHAT REMEDY IS AVAILABLE UNDER THE CONSUMER PROTECTION ACT IN CASE OF MEDICAL
NEGLIGENCE
In case of any medical negligence, complaint can be filed under The Consumer Protection Act, 1986.
Who Can File The Complaint?
According to Sec. 2(1)(b), of The Consumer Protection Act, 1986, The complaint can be filled by:-
a. a consumer;
b. any voluntary consumer association registered under the Companies Act, 1956 (1of
1956)or under any other law for the time being in force; or
c. the Central Government or any State Government,
d. one or more consumers, where there are numerous consumers having the same
interest;
e. in case of death of a consumer, his legal heir or representative; who or which makes a
complaint.
Where complaint can be filed?
The Consumer Protection Act, 1986 sets up a three tier structure for the redressal of consumer
grievances.
a. At the lowest level, i.e., the District level is the Consumer Disputes Redressal Forum
known as `the District Forum';
b. At the next higher level, i.e., the State level is the Consumer Disputes Redressal
Commission known as `the State Commission and
c. At the highest level is the National Commission.
Jurisdiction of the Consumer Forums
According to The Consumer Protection Act, 1986, A complaint can be filed in:
a. the District Forum if the value of services and compensation claimed is less than 20 lakh
rupees,
b. before the State Commission, if the value of the goods or services and the compensation
claimed does not exceed more than 1 crore rupees, or
c. in the National Commission, if the value of the goods or services and the compensation
exceeds more than 1 crore rupees.
Right to appeal is available or not?
According to The Consumer Protection Act 1986, An appeal against the decision of the District Forum
can be filed before the State Commission. An appeal will then go from the State Commission to the
National Commission and from the National Commission to the Supreme Court. The time limit within
which the appeal should be filed is 30 days from the date of the decision in all cases.
What procedure will be followed under the act?
The process before the competent forum will be set in motion in the following manner. When the
Complainant files a written complaint, the forum, after admitting the complaint, sends a written notice
to the opposite party asking for a written version to be submitted within 30 days. Thereafter, subsequent
to proper scrutiny, the forum would ask for either filing of an affidavit or production of evidence in the
form of interrogatories, expert evidence, medical literature, and judicial decisions.

6. Explain Directive Principle of State Policy in the light of Health and Medical
Jurisprudence.
Directive Principles of State Policy are in the form of instructions/guidelines to the
governments at the center as well as states. Though these principles are non-
justiciable, they are fundamental in the governance of the country.
The term life under Article nowhere means mere survival but insinuates on the
human needs of living a life with dignity and respect. The Article 21 along with
other statutes namely: Article 38, 41, 42 and 47 paints a much clearer picture as to
how the State is obligated to fulfill the responsibilities, bestowed upon them by the
Constitution, of ensuring the right to health to the Indian populace.
The part 4 of the Indian Constitution deals with the Directive Principles of State
Policy which direct the state to perform and undertake duties which ensure the
health facilities for the people of India. On further reading one can get hold of
the articles which are directly and indirectly related to the sphere of public
health and healthcare. Those articles are as follows:
 1. Articles 38 impose liability on state that state secure a social order
for the promotion of welfare of the people but without public health
we can’t achieve it.
2. Article 39(e) related with workers to protect their health.
3. Article 41 imposed duty on state to public assistance basically for
those who are sick & disable.
4. Article 42 it’s a primary responsibility of the state to protect the
health of infant & mother by maternity benefit.
5. Article 47 spell out the duty of the state to raise the level of
nutrition & the standard of living of its people as primary
responsibility.
It’s not just the State but the authority to function towards maintaining good health
care of the citizens also rests in the hands of panchayats and municipalities. The
municipalities and Panchayats are directed to work towards maintaining certain
aspects of public health care which are prescribed under the Eleventh Schedule of
the Indian Constitution. The purview of the eleventh schedule undertakes a wide
range of aspects which are to be taken care of by the municipalities and village
Panchayats and the ones relating to the maintenance of public health are as under:
i) Drinking Water , (ii) Health and Sanitation , (iii) Family Welfare,
(iv)Women and child development (v) Welfare(Especially of the diabled
(vi) Water Supply for domestic and industrial usage

(a) Autopsy

An autopsy, also known as a post-mortem examination, is a specialized surgical

procedure used to determine the cause and manner of death. The cause of death is
the medical reason explaining why a patient passed. The manner of death is the
circumstances surrounding the death. Connecticut recognizes the following manners
of death: natural, accident, homicide, suicide, and unknown. Only deaths due to
natural causes are examined at Yale New Haven Hospital. All other manners of death
are referred to the Office of Chief Medical Examiner (OCME) for further investigation.

Autopsies continually advance our understanding of disease. What we learn from

autopsies allows clinicians to better understand disease processes, accurately
diagnose diseases, improve therapy, and potentially aid other patients who are
currently suffering from a similar disease. There are many reasons why families
choose to pursue having an autopsy done. Consent for an autopsy at Yale includes
diagnostic, education, quality improvement, and research.

Types of Autopsy
An autopsy is performed for three main reasons that we will discuss shortly. A
clinical autopsy will be done on a patient that has died while under the care of a
hospital or clinical staff and in cases where the physicians have failed to identify
the cause of a sudden death. This type of autopsy will be useful for attaining the
time and cause of death, as well as for giving doctors a cause of death to
appropriately file a death certificate.

A forensic autopsy, on the other hand, will be a type of autopsy performed when
a corpse has been retrieved from a crime or murder site. This autopsy will reveal
any trace of bullets, blows or injuries, and poison in the system. A medical
examiner must be present, and will decide if the cause of death was an accident,
murder, or suicide. This autopsy will guide police through their investigation.

Lastly, an academic autopsy is one that is performed by medical students to

teach them about human anatomy. Likewise, some may be used for research
purposes, as well. The source of the bodies will be patients who have willingly
donated their bodies to science, or unclaimed bodies after filing the needed legal
paperwork.

Importance of Autopsies
While any family, or next of kin, can request an autopsy of their deceased loved
one, autopsies are most certainly the golden standard when the cause of death
is uncertain. This may take place if a person was found deceased from a possibly
accidental circumstance, or if a person was murdered. This clearly has crucial
significance in the realm of criminal law, but also within the human experience of
grieving and finding closure. For this reason, the autopsy has been performed for
legal and medical reasons for a long time.

(b) Res Ipsa Loquitur

The Latin term Res Ipsa Loquitur means “the thing speaks for itself “. which means the
situation of a particular act is enough to get the idea what has happened. It is the
principle that the mere occurrence of some types of accident is sufficient to imply
negligence.
In tort law, a principle that allows plaintiffs to meet their burden of proof with what is, in
effect, circumstantial evidence. The plaintiff can create a rebuttable presumption of
negligence by the defendant by proving that the harm would not ordinarily have
occurred without negligence, that the object that caused the harm was under the
defendant’s control, and that there are no other plausible explanations. It is a Prima
facie case.

According to the Blacks Law Dictionary the maxim is defined as the doctrine providing
that, in some circumstances, the mere fact of an accidents occurrence raises an inference
of negligence so as to establish a prima facie (at first sight) case. It is a symbol for the
rule that the fact of the occurrence of an injury taken with the surrounding
circumstances may permit an inference or raise a presumption of negligence, or make
out a plaintiff’s prima facie case and present a question of fact for the defendant to
meet with an explanation.

Case law regarding Res ipsa loquitur

Roe v. Minister of Health

In this case the plaintiff was admitted to the hospital for minor operations. The plaintiff
was administered spinal anaesthetics by injections of nupercaine and developed spastic
paraplegia. The anaesthetics were stored in glass ampoules immersed in a solution of
phenol, and the judge found that the injuries were caused by phenol, which could have
entered the ampoules through flaws not detectable by visual examination. The plaintiff
contended that the doctrine of Res Ipsa Loquitur be applied against the hospital as the
injury would not have occurred had the hospital not been negligent.

Houghland v. R.R. LOW (luxury of coaches) Ltd.

The plaintiff’s suitcase was deposited with the defendant bus-owner’s driver at the
beginning of a journey. The bus broke down and the luggage was transferred by the
owner’s servants from the bus’s boot to another bus. At the end of the journey the
suitcase could not be found. The plaintiff was awarded damages and the court held that
if the luggage had been lost then it was upto the defendant to prove that he was not
negligent, which is nothing but Res Ipsa Loquitur.

Essentials to prove res ipsa loquitur –

1.The incident was of a type that does not generally happen without negligence

2.It was caused by an instrumentality solely in defendant’s control

3.The plaintiff did not contribute to the cause

Limitations on Res ipsa Loquitur

An injury which happens without the fault of a plaintiff (i.e. certain types of slip-and-fall
accidents) would necessarily fail the prima facie test, failing the third element in
particular.

Maxim not applicable if different inferences possible –

The maxim res ipsa loquitur applies when the only inference from the facts is that the
accident could not have occurred but for the defendant’s negligence.

In Sk. Aliah Bakhas v. Dhirendra Nath, an auto rickshaw tried to cross the unmanned
level crossing when the railway train was at a short distance from the crossing. The
autorickshaw was hit and dragged to some distance by the train injuring the occupants.
It was held that an attempt on the part of the rickshaw driver to cross the railway track
when the train was fast approaching could lead to the only inference that the rickshaw
driver was negligent. Therefore, the presumption of negligence against the rickshaw
driver was raised. When the accident is capable of two explanations, such a presumption
is not raised.

(c) Medical Jurisprudence

Medical jurisprudence means knowledge of medical science for legal purposes. There are two
types of laws, i.e., civil and criminal. Criminal law deals with hurt, death, and purely with human
body. Some crimes are committed to cover actual offence like self induce. Some time a man is
killed with injury and put into water or fire to conceal its evidence.
Importance of medical jurisprudence: This science is used in the following matters:
1. Right investigation: Body gets lose when injury is inflicted to it. It requires proper fixation
of liability on the part of offender.
2. Punishment: Proper investigation helps in the punishment to the offender.
3. Involvement: This science discriminates, the person actually involved and one who is
wrongly charged.
4. Self-defence: Person maliciously involved in crime may put the results of the reports or
laboratory in his defence.
5. Acquitance: Medical jurisprudence may get acquitted the person involved wrongly in an
offence.

(d) Doctor-Patient relationship

A doctor–patient relationship (DPR) is considered to be the core element in the ethical principles
of medicine. A good doctor–patient relationship is necessary for a good practice of healthcare.
DPR is usually developed when a physician tends to a patient’s medical needs via check-up,
diagnosis, and treatment in an agreeable manner. The trust that a patient places on a doctor or
surgeon is important because this trust is directly linked with the health of a person. Due to the
relationship, the doctor owes a responsibility to the patient to proceed toward the ailment or
conclude the relationship successfully. In this article, we shall discuss contractual nature of
doctor-patient relationship and very important concept called informed consent.

Doctor-Patient Relation as Contract:

 Proposal and Acceptance: Patient goes to doctor, seeking treatment for
illness (proposal). Doctor gives him an appointment and accepts him as
a patient (Acceptance)
 Competencies of the Parties: According to the Contract Act,
contracting parties should be major, and of sound mind. If patient is
minor, the doctor is entering in contract with parents or guardians of
minor.
 Free Consent: Here parties are agree on the same thing in the same
sense and the consent is not caused by coercion or undue influence or
fraud or misrepresentation or mistake.
 Lawful Consideration and Object: In Doctor-Patient contract both the
consideration and object are lawful. There is no unlawful in the
treatment of a patient.
 The agreement should not be expressly prohibited by Ss. 27 to 30 of
the Indian Contract Act: The Contract between patient and Doctor is
not prohibited by these provisions.

Thus doctor-patient relation has all the requisites of a valid contract.

Hence Doctor-Patient relation is a Contractual Relationship.

Case Laws: Everett v. Griffiths, Morris v. Winsburry White, Edwards v.

Mullan.
Termination of DPR

Innumerable situations might bring about a physician’s discharge of

patients and the ending of DPR. The relationship may come to an end
when:

 the physician concludes that the patient needs the care of different
specialists;
 successive missing of appointments by the patient;
 the physician refuses treatment due to nationality, religion, and other
causes;
 neglecting a patient from prompt professional care without making
arrangements for the continuance of such care (patient abandonment).
 (e) National Health Policy 2017

The Union Cabinet this week approved the National Health Policy 2017 after having
deferred it twice before. The last health policy was issued 15 years ago in 2002. As Prime
Minister Narendra Modi puts it, “The National Health policy marks a historic moment in our
endeavour to create a healthy India where everyone has access to quality healthcare.” Aiming
to provide healthcare in an “assured manner” to all, the policy will strive to address current
and emerging challenges arising from the ever-changing socio-economic, technological and
epidemiological scenarios.
Primary features
According to Health Minister J P Nadda, the policy advocates a progressively incremental
assurance-based approach. It envisages providing larger package of assured comprehensive
primary health care through the ‘Health and Wellness Centres’ and denotes important change
from very selective to comprehensive primary health care package which includes care for
major NCDs [non-communicable diseases], mental health, geriatric health care, palliative
care and rehabilitative care services.
It aims to allocate major proportion of resources to primary care and intends to ensure
availability of two beds per 1,000 population distributed in a manner to enable access within
golden hour [the first hour after traumatic injury, when the victim is most likely to benefit
from emergency treatment].
In addition, the policy proposes free drugs, free diagnostics and free emergency and essential
health care services in all public hospitals in a bid to provide access and financial protection.
It also envisages a three-dimensional integration of AYUSH systems encompassing cross
referrals, co-location and integrative practices across systems of medicines. It also boasts of
having an effective grievance redressal mechanism.
The policy proposes free drugs, free diagnostics and free emergency and essential health care
services in all public hospitals in a bid to provide access and financial protection
Impact on Gross Domestic Product
The policy proposes raising public health expenditure to 2.5 per cent of the GDP in a time-
bound manner. According to the Health Minister, the 2.5 per cent of GDP spend target for
this sector would be met by 2025.
Key targets
Among key targets, the policy intends to increase life expectancy at birth from 67.5 to 70 by
2025 and reduce infant mortality rate to 28 by 2019. It also aims to reduce under five
mortality to 23 by the year 2025. Besides, it intends to achieve the global 2020 HIV target.

The National Health Policy 2017 is a plan that guides and supports the government to improve
the healthcare system in all areas. The policy wants to make healthcare better by doing many
things, such as investing in health, preventing diseases, promoting good health, making
technology more accessible, and improving people's skills.

About National Health Policy

o In 2017, the Central Government launched the National Health Policy to replace the existing
health policy of 2002.
o There is a need to develop a new healthcare policy due to two main factors. There is an
increase in the number of non-communicable diseases, illnesses not caused by germs.
Secondly, the healthcare industry is growing fast and is estimated to continue to expand
quickly.
o Also, the catastrophic cost of health care in India was a burden to the poor. The economy is
growing, so more money is available to improve financial resources.

Thus there was a need for New Health Care Policy. The 2017 policy aims to achieve the highest
possible level of health and well-being for individuals, regardless of age.

o The policy aims to ensure everyone can get good healthcare without worrying about money.
o To reach these goals, the policy wants to make healthcare easier, ensure better quality, and
make it cheaper.

Key Features of National Health Policy 2017

o To provide superior healthcare services to all age groups and genders.
o To ensure universal high-quality healthcare services at an affordable cost.
 o Promoting a healthcare-oriented approach in all development policies.
o The goal is to lower the number of people who die too soon from cancer, heart disease,
breathing problems, and diabetes by 25% before 2025.
o To recognize the importance of sustainable development and setting time-bound
quantitative goals.
o The goal is to improve healthcare in all aspects, including services that help people stay
healthy, feel better when sick, and recover from illnesses.

Objectives of National Health Policy 2017

The National Health Policy 2017 has several goals, and these are listed below.

o To provide superior healthcare services to all age groups and genders.

o Ensuring universal high-quality healthcare services at an affordable cost.
o Promoting a healthcare-oriented approach in all development policies.
o The aim is to decrease the number of people who die too soon from cancer, heart disease,
breathing problems, and diabetes by 25% before 2025
o Recognizing the importance of sustainable development and setting time-bound
quantitative goals.
o Improving healthcare by offering services that keep people healthy, make them feel better,
and help them recover.

(f) Mental Health Act 1987.

(a) Bio-Medical Waste

Bi o med i cal waste

It may be in the form of solid or liquid. Basically, biomedical waste is generated from biological
or medical activities like prevention, diagnosis etc. The common producers of bio medical waste
include hospitals, emergency medical services, morgues, medical research laboratory,
veterinarians etc waste with these characteristics is called clinical or medical waste. There is
some infectious biomedical waste which include used bandages, discarded gloves, contaminated
used needles, discarded blood, scalpels, amputation, lancets etc and many other devices which is
responsible for penetrating skin.

Disposal of such kind of waste is of environmental concern as many of these biomedical wastes
are classified as infectious or biohazardous which leads to the spread of infectious disease.

The Bio Medical Waste Management Rules 2016 define under section 3(6)"bio-medical waste"
means any waste, which is generated during the diagnosis, treatment or immunisation of human
beings or animals or research activities pertaining thereto or in the production or testing of
biological or in health camps, including the categories mentioned in Schedule I appended to
these rules.[i] In India, Biomedical waste is regulated by the Biomedical Waste Management
Rules 2016[ii]

A hospital waste is a kind of waste that contains infectious materials. It may also include a waste
which is associated with the generation of biomedical waste that appears to be of medical or
laboratory origin, or of research laboratory waste which contains biomolecules which is mainly
restricted from environmental release. Even discarded sharps are also considered as biomedical
waste it does not matter whether they are contaminated or not as there is a possibility of being
contaminated with blood and there is propensity to cause injury when it is not properly contained
of disposed. It is a type of biowaste.
Biomedical waste means waste which may be in solid or liquid form. It also includes containers
and any intermediate products which is generated during the diagnosis, treatment of human
beings or animals it also includes research activities pertaining in the production or testing in the
health camps.

It basically, causes hazard because of two principle reasons:

1. The first one in infectivity
2. Toxicity

Bio medical waste consist of:

a. Waste generated from human anatomical (tissues, organs etc);
 b. Waste generated from animal waste during research from the veterinary hospitals;
c. Waste of discarded medicines;
d. Waste of cytotoxic drugs;
e. Liquid waste from infected areas, incineration ash or any other chemical wastes;
f. Waste materials contaminated with blood, tubes etc or soiled waste i.e., dressing,
bandages etc.

Situation of Bio medical waste during COVID- 19

As the number of persons infected with COVID-19 is continuously rising throughout the world
and in such circumstances, bio waste management which includes of hazardous management,
medical etc waste is of extreme importance.

During the pandemic, many types of medical and hazardous waste are generated form hospitals
as well as house hold waste which includes infected gloves, masks, samples, syringes, urine
bags, body fluid, empty ampules etc. when medical and household waste get mixed they create
secondary impact upon the health of the people at large and on the environment as well.
Improper management of this waste could cause unforeseen effects on human health and the
environment and therefore proper handling and disposal of such waste with safety is very
essential.

Types of bio medical waste

The World Health Organisation has issued its guidelines in which it classified different types of
medical waste, which includes:
Infectious waste- it includes the waste which includes infectious or contaminated waste
generated from hospitals;
I. Sharps- it includes waste like needles, scalpels, razors, broken glass etc;
II. Pathological waste- it includes tissues, blood, body parts, blood, fluid of human or
animal;
III. Pharmaceutical waste- it includes unused or expired drug or medicines like creams, pills
etc;
IV. Genotoxic waste-it consists of cytotoxic drugs and other waste which is toxic in nature;
 V. Radioactive waste- any waste which contains potentially radioactive materials;
VI. Chemical waste- waste which is usually in liquid form that comes from machines,
batteries and disinfectants;
VII. General waste- it contains all other non-hazardous waste.

Treatment of bio medical waste

There are several treatments of biomedical waste which maximising safety during handling and
disposal of waste and on the other hand minimizes the environmental hazards. Biomedical
treatment is a process by which the deleterious effects of the waste can be eradicated.

The primary method of handling bio medical treatment;

Incineration
Autoclaving
Chemical treatment
Irradiation

Incineration
It is a process of burning the medical waste in a dedicated incinerator. It is an old technology and
it was widely used in the past for disposing all types of waste. Every individual building had
their own incinerators for disposing off their waste. But unfortunately, it got a very bad
reputation as they created bottom ashes, clinker etc., which is responsible for air pollution. But in
present scenario it is much cleaner and it is responsible for decreasing the mass of waste by 90-
95 %.

Autoclaving
It is a sterilization method which uses high-pressure steam. It is the best and most common
alternative of incineration. This treatment is basically applied to inactivate the infectious
materials and used to sterilize the equipment which is used in medical services. It is affordable
and there is no bad impact on human health.

Chemical treatment
This treatment is used to decontaminate the waste which is in the form of liquid by using
chlorine compoundswhich used to kill the microorganism and infectious agents present in the
medical waste. It also helps in oxidising the hazardous chemical waste. Chemicals like chlorine,
calcium oxide etc can be used according to the nature of the waste.

Irradiation
It disinfects waste be emitting gamma rays on the bacteria and expose of the rays is fatal on
bacteria. It uses rays like gamma, ultraviolet rays, x-rays etc in treatment of these waste. It is
quite expensive method in treatment of bio medical waste compared to any other methods and
precautions must be taken by the hospital workers as it emits harmful radiation. It uses the same
radiation which is used in the treatment of cancer. In cancer treatment, the radiation is intended
to kill the malignant cells whereas the radiation that comes from irradiation intended to kill the
pathogens and infectious agents.[iii]

Segregation of bio medical waste

Under Section 8 of Bio Medical Waste Rules (2016) Segregation is mentioned. It plays a very
crucial role for improving the bio medical waste management. The most essential part is to
reduce the volume of infectious waste which is responsible for spreading diseases. If any quick
step is not taken against this than the quantum of waste will go beyond the control of
management.

The waste is segregated according to different colour which is mentioned under the Schedule 1
of the Bio Medical Waste Management Rules (2016).

S.Q. Asphyxia Death.

Asphyxia and its Types

Any mechanical interference with the respiratory process, causing lack of oxygen and death of
an individual is called violent asphyxial death.
 Effective Respiration
Effective respiration depends on the combination of three critical elements:

1. An open and patent airway

2. A functional muscular pump or bellows system to achieve airflow in and out of lungs
3. An adequate gas exchange between the alveoli of the lungs and the pulmonary vascular
system
1. Mechanical Asphyxia
1. Smothering
Smothering is a form of asphyxia caused by mechanical occlusion of external air passages,
which include the nose or mouth by hand, cloth, plastic bag or any other material.

2. Choking
Choking is a form of asphyxia caused by mechanical occlusion of the lumina of the air passages
by a solid object. (Café coronary)

3. Throttling
Throttling is the manual strangulation
4. Strangulation
 By hands (throttling)
 By ligature
 By hanging
General Causes of Hypoxia
1. Absence/reduction of oxygen in general atmosphere (suffocation) e.g. plastic bags, well,
gutter, tank, etc.
2. Closure of external respiratory orifices i.e. mouth and nose (smothering, gagging)
3. Obstruction of internal respiratory passages at:
1. Pharynx –choking due to foreign body, laryngeal edema, food bolus, hemorrhages,
dentures
2. Trachea –throttling, strangulation, mugging

3. Bronchi –aspiration, drowning

4. Restriction of respiratory movements

5. Trauma

6. Paralysis
 7. Drugs

8. Diseases of lungs

9. Cardiac failure

10. Blood disorders –anemia

11. Carbon monoxide poisoning

12. Cyanide poisoning

Classical Signs of Asphyxia
1. Petechial hemorrhages on the face and neck, due to rupture of small venules on application
of pressure. Pressure may be severe enough in strangulation to rupture larger plexus of venules
producing larger echymoses.

Second most common place for petechial hemorrhages is chest especially visceral and parietal
pleura, due to negative pressure developed in an increased effort to inspire.

2. In manual strangulation, arterial supply is not hampered while venous drainage of head and
neck is obstructed, leading to more leakage of fluid from veins. This results in bulging of eyes,
protrusion of tongue, edema and congestion
3. Cyanosis is most commonly seen on the face, i.e. bluish discoloration of face due to reduced
oxygenated hemoglobin.
4. Increased fluidity of blood and enlargement and engorgement of right heart is also found, but
these findings are not included in the classical signs of asphyxia.

Petechial hemorrhages are seldom seen in hanging and not seen at all in drowning. They might
be seen in some bleeding disorders as well.

Petechial Hemorrhages (Tardieu’s Spots)

Petechial hemorrhages are the pinpoint (1-2 mm) collections of blood in serosal and skin
surfaces due to rupture of small venules under pressure.

Externally
 Most often seen on face and conjunctiva
 Bleeding from nasal mucosa and external auditory meatus
Internally
 Most often seen on serosal membranes of thorax. Mostly on visceral pleura and rarely on
parietal pleura
 Commonly seen on the heart surfaces
 Also may be found on the thymus in infants
 Never seen on peritoneal serosa
Significance of Petechial Hemorrhages
1. Generally petechial hemorrhages are highly unreliable signs of asphyxia
2. Only the facial and ocular petechiae may have significance as indicator of asphyxia
3. Normally they are present in areas of hypostasis
4. Post mortem petechiae can appear especially in dependent parts
5. In drowning and suffocation, petechiae are seldom visible
2. Positional Asphyxia
Positional asphyxia occurs when the position of a person’s body interferes with respiration,
resulting in death from asphyxia or suffocation.

At death, the victim must be found in a position that interferes with pulmonary gas exchange
(breathing). Such a position may range from one that causes obstruction of the mouth and
nares, to one that causes restriction of the chest and diaphragm.

In inability of the victim to escape this position must be explained. In positional asphyxia death
unrelated to restraints, unconsciousness due to acute alcohol intoxication is the most frequent
explanation of the victim’s inability to escape from asphyxiating posture.

All other causes of death –natural or unnatural, medical or traumatic, must be explored by
autopsy and excluded to a reasonable degree of medical certainty.

3. Restraint Asphyxia
This includes:

1. Mugging
2. Arm lock
Mugging/’Arm lock’ (Carotid sleeper or Bar arm)
When strangulation is affected by compressing victim’s neck against the forearm, it is known as
mugging (choke-hold). It may leave no external or internal mark of injury.

4. Sexual Asphyxia or autoerotic asphyxia

5. Traumatic asphyxia
1. Homicidal traumatic
2. Burking
3. Bansdola
4. Penetrating trauma
5. Pressure on chest
6. Pneumothorax
7. Accidental trauma
(a) What do you mean by 'Right to Health'?

The right to health is the right to the enjoyment of the highest attainable
standard of physical and mental health.

The UN Committee on Economic Social and Cultural Rights has stated that
health is a fundamental human right indispensable for the exercise of other
human rights. Every human being is entitled to the enjoyment of the highest
attainable standard of health conducive to living a life in dignity.

According to the World Health Organization (WHO), health is a state of

complete physical, mental and social well being and not merely the
absence of disease. The WHO goes on to clarify that it is the state’s legal
obligation to ensure uniform access to “timely, acceptable, and
affordable health care of appropriate quality as well as to provide for the
underlying determinants of health, such as safe and potable water,
sanitation, food, housing, health-related information and education, and
gender equality” to all its people. In India, this right, which is a natural
corollary to promoting public health, is protected under the Constitution
of India in multiple ways.

The Directive Principles of State Policy (DPSP), enshrined in Chapter

IV of the Constitution of India, require the state to, among other duties,

· promote the welfare of its people (Art.38);

· protect their health and strength from abuse (Art 39(e));

· provide public assistance in case of sickness, disability or “undeserved
want” (Art 41);

· ensure just and humane conditions of work; and

· raise nutrition levels, improve the standard of living and consider

improvement of public health as its primary duty (Art 47).

In addition to the DPSP, some other health-related provisions can be

found in the 11th and 12th Schedules, as subjects within the jurisdictions
of Panchayats and Municipalities, respectively. These include the duty to
provide clean drinking water, adequate healthcare and sanitation
(including hospitals, primary health care centers and dispensaries),
promotion of family welfare, development of women and children,
promotion of social welfare, etc.

The Constitution of India does not expressly recognize Right to Health

as a fundamental right under Part III of the Constitution (Fundamental
Rights). However, through judicial interpretation, this has been read into
the fundamental right to life & personal liberty (Article 21) and is now
considered an inseparable part of the Right to Life. Article 23 of the
Constitution of India also indirectly contributes to protecting the Right
to Health as it prohibits human trafficking and child labour.

The role of Indian Supreme Court in protecting the health of the public
at large is noteworthy. The Supreme Court has repeatedly observed that
the expression “life” in Article 21 means a life with human dignity and
not mere survival or animal existence (Francis Coralie Mullin vs The
Administrator, Union Territory of Delhi AIR 1981 746). Right to life has
a very broad scope which includes right to livelihood, better standard of
life, hygienic conditions in the workplace & right to leisure. Right to
Health is, therefore, an inherent and inescapable part of a dignified life.
Article 21 should also be read in tandem with the directive principles of
state policy, cited above, to truly understand the nature of the obligations
of the state in this respect.

In the case of Bandhua Mukti Morcha v. Union of India AIR 1984 SC

812, the Supreme Court held that although the DPSP are not binding
obligations but hold only persuasive value, yet they should be duly
implemented by the State. Further, the Court held that dignity and health
fall within the ambit of life and liberty under Article 21.

In the case of Paschim Banga Khet Mazoor Samity v. State of West

Bengal (1996) 4 SCC 37, the scope of Article 21 was further widened, as
the court held that it is the responsibility of the Government to provide
adequate medical aid to every person and to strive for the welfare of the
public at large.

Further, the Supreme Court in the case of Parmanand Katara v Union of

India AIR 1989 S.C. 2039, held that every doctor at Government
hospital or otherwise has the professional obligation to extend his
services with due expertise for protecting life of a patient.

In the subsequent case of Consumer Education and Research Centre V.

Union of India AIR 1995 SC 922, held that right to health and medical
aid to protect the health and vigor of a worker, both while in service and
post-retirement, is a fundamental right under Article 21.

Further, According to Article 19 (1) (g) of the Indian Constitution, the

fundamental right of all citizens to practice any profession, or carry on
any occupation, trade or business is subject to restrictions imposed in the
interest of the general public under Article 19(6). The Hon’ble Supreme
Court in the case of Burrabazar Fire Works Dealers Association and
Others v. Commissioner of Police, Calcutta AIR 1998 Cal. 121, held that
Article 19 (1) (g) does not guarantee any freedom which is at the cost of
the community’s safety, health and peace.

Right to Health is a part and parcel of Right to Life and therefore right to
health is a fundamental right guaranteed to every citizen of India under
 Article 21 of the Constitution of India. We owe the recognition of this
right to the fact that the Supreme Court of India, through a series of
judicial precedents, logically extended its interpretation of the right to
life to include right to health.

Therefore, it is the duty of the State to care for the health of the public at
large and the Central Government and various State governments have,
rightfully and proactively, taken various measures to contain the entry
and spread of the COVID-19 pandemic.

(b) "Health is multidimensional" — Briefly explain.

WHO Definition of Health (1948)

Health is a state of complete physical, mental and social well being and not merely absence of disease or
infirmity

New philosophy of Health

In recent year, we have acquired new philosophy of health:

 Health is a fundamental human right

 Health is intersectoral
 Health is an integral part of development
 Health is central to the concept of quality of life
 Health involves individuals, state and international responsibility
 Health is the essence of productive life, and not the result of ever increasing expenditure on
medical care
 Health and its maintenance is a major social investment

Dimensions of Health
Health is multidimensional. WHO definition has three dimensions-physical, mental and social. Other
dimensions are spiritual, emotional, vocational and political.

Physical Dimensions
The physical dimension of health is probably the easiest to understand. The state of physical health
implies the notion of perfect functioning of the body.
The sign of physical health are a good complexion, clean skin, bright eyes, lustrous hair, good appetite,
sound sleep, coordinated body movements, all special senses are intact.

Mental Dimension
Mental health is not mere absence of mental illness. Good mental health is the ability to respond to the
varied experiences of life with flexibility and a sense of purpose. It is a state of balance between the
individual and the surrounding world. Psychological factors can induce all kind of illness, not simply
mental ones.

Mental health has been defined as “a state of balance between the individual and the surrounding
world”.

A state of harmony between oneself and others, a coexistence between the realities of the self and that
of other people and that of the environment.

Psychologists have mentioned certain characteristics as attributes of a mentally healthy person:

 He is free from internal conflicts; he is not at war with himself

 He is well adjusted, is able to get along well with others
 Has good self control, balances rationality and emotionality
 Faces problems and tries to solve them intelligently
 Has a strong sense of self esteem.
Social Dimension
Social well being implies harmony and integration within the individual, between each individual and
other members of society and between individuals and the world in which they live.

The social dimension of health includes the levels of social skills one possesses, social functioning and
the ability to see oneself as a member of a larger society.

Spiritual Dimension
Spiritual health has a role in health and disease. Spiritual health refers to that part of the individual
which reaches out and strives for meaning and purpose in life. It includes integrity, principles and ethics,
the purpose in life, commitment to some higher being and belief in concepts that are not subject to
“state of the art” explanation.

Emotional Dimension
Historically mental and emotional dimensions have been seen as one element or two closely related
elements. Mental health can be seen as knowing or cognition and emotional health relates to feeling.
Mental and emotional aspect are two separate dimensions of human health.

Vocational Dimension
Vocational aspect of life is part of human existence. Importance of this dimension is exposed when
individual suddenly lose job or faced with mandatory retirement.
The vocational output of life is a new dimension. It exists when work is fully adapted to human goals,
capacity & limitation. Work often plays a role in promoting both physical and mental health. Physical
work is associated with an improvement in physical capacity. While goal achievement and self realization
increases mental satisfaction and self esteem.

Other Dimensions
 Philosophical dimension
 Cultural dimension
 Socio-economic dimension
 Environmental dimension
 Educational dimension
 Nutritional dimension
 Curative dimension
 Preventive dimension
Determinants of Health
Health is multifactorial. The determinants include:

1. Biological determinants including nature of genes chromosomal anomalies, errors of metabolism.

2. Behavioral and sociocultural conditions -Life style is the way people live and is associated with
coronary artery disease, obesity, lung cancer, drug addiction

Risk of illness and death are connected with lack of sanitation, poor nutrition, personal hygiene

3. Environment

Internal -each and every component partof body

External -those thing man is exposed

4. Socio-economic conditions

 Economic status
 Education
 Occupation
 Political system
5. Health Services

6. Aging of the population

7. Gender

8. Other factors
Spectrum of health
Health and disease lie along a continuum, and there is no single cut off point. The lowest point on the
health-disease spectrum is death and the highest point positive health.

Positive health
“Perfect Functioning” of the body and mind.

Biologically it is a state in which every cell and every organ is functioning at optimum capacity and in
perfect harmony with each other and the rest of the body.

Psychologically it is a state in which the individual feels a sense of perfect well being and of mastery over
his environment.

Socially as a state in which the individuals capacities for participation in the social system are optimal

Comprehensive View of Health

Over the years the definition of health has become more comprehensive and holistic. The focus of cure
and prevention is no longer just on physical health. Today it is highly important to incorporate all the
quality of life factors when talking about health because they are all with one influencing the other.

Responsibility for Health

Individual Responsibility
Although health is now recognized a fundamental human right, it is essentially an individual
responsibility. It is to be earned and maintained by the individual himself.

Self care – all activities individuals undertake in promoting own health, preventing their own disease,
limiting their illness and restoring their own health. Self care activities relating to diet, sleep, exercise,
weight, smoking, and drugs.

Community Responsibility
Health can never be adequately protected by health services without active involvement of communities
whose health is at stake. The people’s health ought to be the concern of the people themselves. They
must struggle for it and plan for it.

State Responsibility
State assumes responsibility for the health and welfare of its citizens. Health is a state responsibility.

International Responsibility
Governments and international organizations cooperate in achieving the health goals e.g. WHO, UNICEF,
Q. c. Explain the concept of 'Right to Health' in relation to vulnerable groups of
the country.

2. VULNERABLE GROUPS:

The meaning of vulnerable is highly evasive. There does not any specific definition of
this word or rather this term hasn’t been anywhere specifically defined in any statute
precisely. Vulnerable groups are those groups of people who may find it difficult to lead
a comfortable life, and lack developmental opportunities due to their disadvantageous
position. However, in common understanding, people who are easily susceptible to
physical or emotional injury, or subject to unnecessary criticism, or in a less valuable
position in any society may be defined as vulnerable people. Further, due to adverse
socio-economical, cultural, and other practices present in each society, they find it
difficult many a times to exercise their human rights fully.

Vulnerable groups are the groups which would be vulnerable under any circumstances
(e.g. where the adults are unable to provide an adequate livelihood for the household for
reasons of disability, illness, age or some other characteristic), and groups whose
resource endowment is inadequate to provide sufficient income from any available
source.

In India there are multiple socio-economic disadvantages that members of particular

groups experience which limits their access to health and healthcare. Besides there are
multiple and complex factors of vulnerability with different layers and more often than
once it cannot be analysed in isolation. The present document is based on some of the
prominent factors on the basis of which individuals or members of groups are
discriminated in India, i.e., structural factors, age, disability and discrimination that act
as barriers to health and healthcare. The vulnerable groups that face discrimination
include- Women, Scheduled Castes (SC), Scheduled Tribes (ST), Children, Aged,
Disabled, Poor migrants, People living with HIV/AIDS and Sexual Minorities. Sometimes
each group faces multiple barriers due to their multiple identities. For example, in a
patriarchal society, disabled women face double discrimination of being a women and
being disabled.

3.VARIOUS VULNERABLE GROUPS IN INDIA:

(i).Women and Girls:

Women and girls are the most essential part of our society as there cannot be any society
exist without them but there are many sectors where they are not considered as humans
also and for them their does not exists the concept of human rights as they are not aware
about their rights. The scenario in the developing countries is quite different as the
society is changing day by day and as we are adopting each other cultures and in a
modern era they are getting aware of about their human rights and they are in a more
disadvantageous position due to abject poverty, other social, cultural, and derogatory
customary practices adopted in each country.[1] Women face double discrimination
being members of specific caste, class or ethnic group apart from experiencing gendered
vulnerabilities as they have little control on the resources . In India, early marriage and
childbearing affects women’s health adversely. About 28 per cent of girls in India get
married below the legal age and experience pregnancy. These have serious repercussion
on the health of women. Maternal mortality is very high in India. The average maternal
mortality ratio at the national level is 540 deaths per 100,000 live births. It varies between
states and regions, i.e., rural-urban. The rural MMR is 617 deaths of women age between
15-49 years per one lakh live births as compared to 267 maternal deaths per one lakh live
births among the urban population and the end result of that is the death ratio is quite
high. A large percentage of women is reported. In India, social norms and cultural
practices are embedded in a highly patriarchal social order where women are expected to
hold on to strict gender roles about what they can and cannot do and to have received no
antenatal care and there are various institutions which have delivered lowest among
women from the lower economic class as against those from the higher class. During
infancy and growing years a girl child faces different forms of violence like infanticide,
neglect of nutrition needs, education and healthcare. As adults they face violence due to
unwanted pregnancies, domestic violence, sexual abuse at the workplace and sexual
violence including marital rape and honour killings. In the case of internal migration in
India, they suffer greater vulnerability due to reduced economic choices and lack of
social support in the new area of destination.

Major schemes for Women[2]– · Indira Gandhi Matritva Sahyog Yojana (IGMSY) · Rajiv
Gandhi Scheme for Empowerment of Adolescent Girls (RGSEAG) · Swadhar Yojna ·
STEP (Support to Training and Employment Programme for Women) (20th October
2005) · Stree Shakti Puraskaar Yojna · Short Stay Home For Women and Girls (SSH) ·
UJJAWALA : A Comprehensive Scheme for Prevention of trafficking and Rescue,
Rehabilitation and Re-integration of Victims of Trafficking and Commercial Sexual
Exploitation · General Grant-in-Aid Scheme in the field of Women and Child
Development.

(ii) STRUCTURAL DISCRIMINATION (Scheduled Castes, Scheduled Castes,

Dalits, Scheduled Tribes)

Every society is curtailed with different groups and every group has its own rules,
regulations and norms. There is no such particular definition and essentials elements that
will be considered as norms. The norms can be understood as things which act as
structural barriers giving rise to various forms of inequality. Structural norms are
attached to the different relationships between the subordinate and the dominant group in
every society. A group’s status may for example, be determined on the basis of gender,
ethnic origin, skin colour, etc. The Access to health and healthcare for the subordinate
groups is reduced due to the structural barriers. The concept of Structural discrimination
can be understand as the rules, norms, which are generally being accepted approaches
and behaviours in institutions and other social structures that amounts to certain obstacles
for subordinate groups to the equal rights and opportunities possessed by dominant
groups. Such discrimination may be visible or invisible, and it may be intentional or
unintentional. The right to health obliges governments to ensure that “health facilities,
goods and services are accessible to all especially the most vulnerable group or
marginalized section of the population, in law and in fact, without discrimination. In
India, members of gender, caste, class, and ethnic identity practice structural
discrimination as an impact on their health and access to healthcare. Among the
Scheduled Castes and the Scheduled Tribes the most vulnerable are women, children,
aged, those living with HIV/AIDS, mental illness and disability. These groups face
rigorous forms of discrimination that denies them access to cure and prevents them from
achieving a better health status. In India, Girl child and women from the marginalized
groups are more vulnerable to violence. The dropout and illiteracy rates among them are
high. Early marriage, trafficking, forced prostitution and other forms of exploitation are
also reportedly high among them. Further, there is a flawed, inflexible notion that they
lack merit and are incompatible for formal employment and due to the lack of access to
fixed sources of income and high incidence of wage labour associated with high rate of
under-employment and low wages SC households are often faced with low incomes and
high incidence of poverty. In 2004–05, about 36.80% of SC persons were BPL in rural
areas as compared to only 28.30% for others (non-SC/ST

Constitutional aspect of these vulnerable groups:

There are various constitutional provisions which are dealing with the problem of
discrimination on the basis of Caste. They are as follows:

Art. 15(4) : Clause 4 of article 15 is the fountain head of all provisions regarding
compensatory discrimination for SCs/STs. This clause was added in the first
amendment to the constitution in 1951 after the SC judgement in the case of Champakam
Dorairajan V. State of Madras[3]. It says thus, “Nothing in this article or in article
29(2) shall prevent the state from making any provisions for the advancement of any
socially and economically backward classes of citizens or for Scheduled Castes and
Scheduled Tribes.” This clause started the era of reservations in India.

The basic aim or objective of making these articles is to make the socially and
economically people to fall in the same category as the other sections of the
society is treated and make them feel comfortable about their position in the society. In
the case of Balaji V. State of Mysore, the SC held that reservation cannot be more than
50%. Further, that Art. 15(4) talks about backward classes and not backward castes
thus caste is not the only criterion for backwardness.

Finally, in the case of Indra Sawhney V. Union of India[4], SC upheld the

decision given under Balaji V. State of Mysore that reservation should not exceed
50% except only in special circumstances. It further held that it is valid to sub-
categorize the reservation between backward and more backward classes.
However, total should still not exceed 50%. It also held that the carry forward
rule is valid as long as reservation does not exceed 50%.

Art. 15(5): This clause was added in 93rd amendment in 2005 and allows the state to
make special provisions for backward classes or SCs or STs for admissions in private
educational institutions, aided or unaided.

(iii).VULNERABILITY OF CHILDREN AND AGED

Mortality and morbidity among children are caused and compounded by poverty, their
sex and caste position in society. All these will lead to have penalty on their nutrition
intake, access to healthcare, environment and education. The factors which directly
impacts are as follows: food security, education of parents and their access to correct
health information and access to health care facilities. The important causes of death
among children from poor families is Malnutrition and chronic hunger which include
Diarrhoea, acute respiratory diseases, malaria and measles and most of which are either
avoidable or treatable with low-cost intervention. The vulnerability among the elderly is
not only due to an increased incidence of illness and disability, but also due to their
economic dependency upon their spouses, children and other younger family members.
According to the 2001 census, 33.1 per cent of the elderly in India live without their
spouses.

Child faces discrimination and disparity access to nutritious food and gender based
aggression is evident from the falling sex ratio and the use of technologies to get rid of or
abolish the girl child. Surrounded by children the health indicators vary between the
different social groups. High mortality and morbidity is reported among children from
Scheduled Castes, Scheduled Tribes and Other Backward Classes as compared to the
general population. Infant mortality is higher among the rural population (Rural-62,
Urban 42 per one thousand live births in the last five years, National Family Health
Survey 3, Fact Sheets). The injection coverage is very poor among children who live in
rural India. Injection coverage among children between 12-23 months who have received
the suggested vaccines is only 39 per cent in rural India in contrast to 58 per cent in urban
India. In India, children’s vulnerabilities and practice to violations of their protection
rights remain spread and multiple in nature. The manifestations of these violations are
various, ranging from child labour, child trafficking, to commercial sexual exploitation
and many other forms of violence and abuse. With an estimated 12.6 million children
engaged in hazardous occupations. In India, however there is a huge gap in the industry-
specific and exposure-specific epidemiological evidence. Most of the studies are small-
scale and community-based studies and the population is growing promptly and is
emerging as a serious area of concern for the government and the policy planners.
According to data on the age of India’s population, in Census 2001, there are a little over
76.6 million people above 60 years, constituting 7.2 per cent of the population. The
number of people over 60 years in 1991 was 6.8 per cent of the country’s population.

Constitutional provisions of this group:

Art. 19 A: Education up to 14 yrs has been made a fundamental right. Thus, the state is
required to provide school education to children so as to maintain the integrity of the
principle under which these laws are made and also to maintain the equal treatment of
child under the constitution and in the eyes of law as well as society.

In the case of Unni Krishnan V. State of AP[5], SC held that right to education for
children between 6 to 14 yrs of age is a fundamental right as it flows from Right to
Life. After this decision, education was made a fundamental right explicitly through
86th amendment in 2002. Art. 24: Children have a fundamental right against
exploitation and it is prohibited to employ children below 14 yrs of age in factories and
any hazardous processes. Recently the list of hazardous processes has been update to
include domestic, hotel, and restaurant work. Several PILs have been filed in the benefit
of children. For example, MC Mehta V. State of TN[6], SC has held that children cannot
be employed in match factories or which are directly connected with the process as it is
hazardous for the children.

Art. 45: Urges the state to provide early childhood care and education for children up to
6 yrs of age. Age and high levels of economic reliance combine to create high levels of
vulnerability to chronic poverty. While old age pension schemes are in place neither the
small amounts made available nor the aggravated form of accessing them make this a
resolution to the trouble of chronic poverty between the elderly. With the high incidence
of chronic ailments and health care needs of the elderly, declining family size, migration
and breakdown of traditional family structures that provided support, this group of the
population is extremely vulnerable to poverty.

(iv).VULNERABILITY DUE TO DISABILITY

Disability poses greater challenges in obtaining the needed range of services. Persons
with disabilities face several forms of discrimination and have compressed access to
education, employment and other socioeconomic opportunities. The percentage of
disabled inhabitants to the total inhabitants is about 2.13 per cent. There are two broad
categories of disability, one is acquired which means disability acquired because of
accidents and medical reasons and the other is disability since the origin of birth.
According to the National Sample Survey Organisation Report (58th Round), about one-
third of the disabled population have disability since their birth and there are various
interstate and interregional differences in the disabled population. The disabled face
various types of barriers while looking for access to health and health services. In the
middle of those who are disabled women, children and aged are more vulnerable and
need attention. Five out of ten leading causes of disability and premature death
worldwide are due to psychiatric conditions which also include deadly diseases like
Depression and anxiety are the most common mental disorders. The other area of concern
is the mental health of women and the elderly. Neurotic and stress connected cases are
allegedly higher among women than men, though among men there is exposure of higher
number of cases of serious illness. In spite of such proportion of mental illness, the health
care necessities for persons with mental illness are very poor in India. People with mental
illness face severe forms of human rights violations. There is social stigma attached to
mental illness. Women with mental illness are subjected to physical and sexual abuse
both within families and the institutions. Psychiatric medicines are complete only in a
few primary health centres, community centres and district hospitals. Services like child
guidance and rehabilitative services are also obtainable only in mental hospitals and in
big cities. Several states do not have mental hospitals. The Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Act 1995, commonly
referred as the PWD Act came into force on Feb. 7, 1996. Mental illness has been
considered in the Act, but there is no reference to any provision within the Act to be
given or set aside for people with mental illness.

Constitutional provisions of this group:

The Constitution of India ensures equality, freedom, justice and dignity of all
individuals and implicitly mandates an inclusive society for all including the
persons with disabilities. The Constitution in the schedule of subjects lays direct
responsibility of the empowerment of the persons with disabilities on the State
Governments Therefore, the primary responsibility to empower the persons with
disabilities rests with the State Governments.

Under Article 253 of the Constitution read with item No. 13 of the Union List, the
Government of India enacted “The Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995”, in the effort to ensure
equal opportunities for persons with disabilities and their full participation in
nation-building. The Act extends to whole of India except the State of Jammu
and Kashmir. The Government of Jammu & Kashmir has enacted “The Persons
with Disabilities (Equal Opportunities, Protection of Rights & Full Participation
Act, 1998.”

(v).VULNERABILITY DUE TO MIGRATION

Migrants and their denial of human rights have to be understood from the dynamic
contradictions within and across countries—from skilled and voluntary migrants at one
end of the variety to the poor and unskilled migrant population on the other end designed
to be excluded from the fabric of the host nation. The correlation of human rights and
migration is a depressing one and also has bad experiences all the way through the
migratory ‘life cycle’, in areas of origin, journey or transit and destination. The
correlation of health and human rights has becomes even more complex because of
irregular or illegal migration clashes with the interest of the area of target. All these
things have direct impact on the rights of individual migrants. India has a large number of
international migrants. Neighbouring countries are the major sources of foundation of the
international migrants to India with the size of these migrants approaching from
Bangladesh, followed by Pakistan and Nepal, but all these migrants who have entered
the country legally. Migrants and mobile people become more vulnerable to HIV/AIDS
and it creates the situation of encountered and behaviours possibly occupied in during the
mobility or migration that increases vulnerability and risk. Migrant and mobile people
may have little or no access to HIV information, anticipation, health services. This
creates a negatively impact on their ability to access suitable treatment and care and
also there is stigma linked with mental illness due to which they practice discrimination
in many other aspects of their lives which are affecting their various rights such as right
to employment, adequate housing, education etc. There are many who enter the country
illegally and are one of the most vulnerable to abuse and exploitation by employers,
migration agents, corrupt bureaucrats and criminal gangs. In many situations, migrants do
not know what rights they are entitled to and still less how to claim them hence the cases
of abuse go unrecorded. Another area where development is rampant and is forced labour
which takes place in the illicit underground economy and hence tends to escape national
statistics. Illegal migrants often live on the margins of society, trying to avoid contact
with authorities and have little or no legal access to prevention and healthcare services.
They tend to face higher risks of exposure to have unsafe working conditions. Many
frequent they do not approach the health system of the host countries for fear of their
status being discovered. Internal migration of poor labourers has also been on the rise in
India.

(vi).VULNERABILITY DUE TO STIGMA AND DISCRIMINATION

People living with HIV/AIDS, Sexual Minorities:

There are certain attitudes and perceptions towards certain kinds of illnesses and sexual
orientation which results in discrimination against individuals/groups. This section faces
the stigma and discrimination faced by the People living with HIV/AIDS and Sexual
Minorities. These groups face various kinds of discrimination and have reduced access to
healthcare. Stigma is the supreme barrier of health and healthcare in their context.
Negative responses and attitude of the society towards these groups are strongly linked to
people’s observation of the causes of HIV / AIDS and sexual orientation. The rights of
People living with HIV/AIDS are violated when they are deprived of access to have
health, education, and services. They suffer when their close or extended families and
friends fail to provide them the support that they need. India’s National AIDS Control
Organization (NACO) estimated in 2005 that there were 5.206 million HIV infections
in India, of which 38.4 per cent occurred in women and 57 per cent Stigma refer to
attitudes that certain groups are lesser in one or many ways based on their membership
in a group. The term “discrimination” is used whenever people are treated negatively,
either by treating them differently where they should be treated the same or by treating
them same where they should be treated in a different way. Discrimination is the breach
of human rights obligation and which leads to violence, torture, and exclusion from the
society. Treating people equally does not essentially mean that people should be treated
the same and occurred in rural areas. There are many experts argue that the current
figures are gross underestimations and that a significant number of AIDS cases go
unreported. Prevalence estimates are based primarily on guard surveillance conducted at
public sites. The national information system for collecting HIV testing information from
the private sector is very weak. Vulnerability to HIV is also increased by the lack of
power of individuals and communities to minimize or adjust their risk of exposure to HIV
infection and once infected, to receive satisfactory care and support. Some individuals are
more vulnerable to the infection than others. Low status of woman may force a
monogamous woman to engage in exposed sex with her spouse even if he is charming in
sex with others. Similarly youngster girls and boys may be vulnerable to HIV by being
denied access to preventive information, education, and services. Sex workers may have
greater vulnerability to HIV if they cannot access services to prevent, diagnose, and treat
sexually transmitted infections, particularly if they are afraid to come forward because of
the stigma associated with their occupation. There are strong perceptions of the causes of
AIDS, routes of transmission, and their level of knowledge about the illness. These are
compounded by the marginalization and stigmatization on the basis of such attributes as
gender, migrant status or behaviours that may be perceived as risk factors for HIV
infection. For example, women whose husbands have died of AIDS are rejected by their
own and their husband’s families and they are denied property inheritance of their
husbands.

Constitutional provisions of this group:

Art. 15(1) : The State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them.
4.WHAT CONSTITUTES VIOLATION OF RIGHT TO HEALTH FOR
VULNERABLE GROUPS?[7]

The violation of the right to health of vulnerable groups may result from direct
government action, from failure of the government to fulfil its minimum core obligations
and from the patterns of systematic discrimination. The specific examples of violations of
right to health of vulnerable groups would be:

o Deliberate preservation or twisting of information on the health status of deprived

groups that may have been necessary for the prevention and treatment of illness or
disability.
o Impressive discriminatory practices touching the group’s health status and needs.
Adopting laws and policies that interfere with the rights of the groups, for
example, women’s reproductive rights.
o Failure to protect women against violence is often systematic and serious enough
to require women to seek hospital treatment for injuries and involve other health
difficulty related to violence. When governments fail to take pre-emptive steps to
prevent and treat victims of violence it is tantamount to violation of right.
o Failure of government to provide adequate public health measures against
infectious diseases that affect the disadvantaged groups.
o Government policies and practices creating imbalances in providing health
services, i.e., poor infrastructure in rural areas or predominantly tribal areas.
Systematic discrimination in access to medicines and essential drugs for particular
groups, i.e., HIV/AIDS drugs, reproductive health services for particular groups
like women living in poverty, in rural areas, belonging to marginalized
communities.

5.SCOPE AND LIMITATIONS OF THE INDIAN STATE VIS-A VIS RIGHT TO

HEALTH

The Constitution of India and the other various laws do not accord health and healthcare
as rights to the population in general. While civil and political rights are enshrined as
fundamental rights that are permissible, social and economic rights like health, education,
livelihoods etc. exist as Directive Principles for the State and are hence not permissible.
There are however so many instances in which cases have been filed in the various High
Courts of states and Supreme Court of India on the right to life, Article 21 of the Indian
Constitution or on the various directive principles to demand access to healthcare,
particularly in emergency situations. International safeguard of human rights is only
effective when they are made viable by national protection. The key factors in rights
being operationalised for individuals and groups within a nation are National-level
legislation, policies and enforcement mechanism in which National laws offer variable
degrees of protection against human rights violation and enables national bodies to hear
cases of denial and enforce the norms. At present there is a problem of justifiability of the
Right to health in Indian Constitution since the same is not protected by national
legislation. Though India has ratified the Treaty on the Economic Social and Cultural
Right which covers Right to Health (Article 12), that cannot be efficiently used to
advocate for right to health in India. The Courts or petitioners can merely derive
motivation from the treaties on the cases on contradiction on right to health but may not
be able to use it efficiently to deliver justice. The international treaties have only an
suggestive significance unless protected by national legislation. Absence of national
legislation on right to health in India is the main reason why it cannot be realized. Health
and human rights support in India needs to intensify the attempts towards transforming
the critical principles of the Directive principles on health and work into independent
rights through rigorous judicial activism, i.e., filing Public Interest Litigations, gathering
testimonials for denial on right to health, etc. There needs to be a concerted move
towards making a national legislation on right to health.

6.CONCLUSION:

In the Constitution of India, the three pillars of human rights are

(a). the right to equality including the prohibition of discrimination in any form

(b). the six vital freedoms of citizens (including the right to speech and expression)

(c). the right to life guaranteed to all persons.

These rights have been recognized to be inalienable, unalterable and part of the basic
structure of the Constitution which cannot be abrogated. India’s Supreme Court has
interpreted the right to life as including the right to live with dignity, right to health,
education, human environment, speedy trial and privacy, to name a few. Much of the
focus of governmental activity has been to improve the provision of services through
grass-roots local self-governance institutions, particularly in rural areas. India has taken
an important initiative for the empowerment of women by reserving one-third of all seats
for women in urban and local self-government, bringing over one million women at the
grassroots level into political decision making. India has guaranteed human rights to all
persons in India including the protection of minorities. India has secured their right to
practice and preserve their religious and cultural beliefs as a part of the Chapter on
Fundamental Rights. Legislative and executive measures have been taken for the
effective implementation of safeguards provided under the Constitution for the
protection of the interests of minorities. India has been deeply conscious of the need to
empower the Scheduled Castes and Scheduled Tribes and is fully committed to tackle any
discrimination against them at every level. The Constitution of India abolished
“untouchability” and forbids its practice in any form. There are also explicit and
elaborate legal and administrative provisions to address caste-based discrimination in
the country. India stated that at independence, after the departure of the colonizers, all
the people, including its tribal people, were considered as indigenous to India. This
position has been clarified on various occasions, including while extending India’s
support to the adoption of the United Nations Declaration on the Rights of Indigenous
Peoples at the Human Rights Council and the General Assembly.

Q."The Constitution of India guarantees the right to health for every citizen of
India."— Discuss in the light of Part-III and Part-IV of the Constitution with the
help of decided cases.

RIGHT TO HEALTH: THE COMPONENTS:

There can various components for the right to health which are summed up as follows:

1. The right to proper and correct health care:

It needs the establishment of proper and appropriate health care system with better facilities by
the hospitals and doctors. The drugs should be available to all in good quality with any
discrimination of the economic and social status. They must be affordable to all.

2. The right to sufficient supply of water, food, shelter and

nutrition:
The right to health encompasses everything that is involved to have the better health such as pure
and safe drinking water, hygienic food, proper shelter to live in and the perfect amount of
nutrition needed for oneself.

3. The right to have a safe and healthy working

environment:
The right to have a healthy environment condition involves that there should be the absence of
harmful materials that can cause harm to the health of the workers. Preventive measures should
be taken place in case of any accidents and disease caused to a person at work.

4. The right to have reproductive, mother and child health

care:
There should be some provisions for the protection of the health of the child and the mother and
even at the time of reproduction. It includes mental, sexual and reproductive health services.
 5. The right to know every information about a better
health:
It is the right of the citizens to have all the information and have access to all health-related
problems, such as HIV AIDS, cancer and other diseases. They should know the side effects of
the excessive use of cigarettes, drugs and alcohols. They should be aware of the laws regulating
the child violence and domestic violence. They should be made aware of the new technical and
safe medical practices in place of old traditional practices.

6. The right to have equal participation in decision making

related to health:
It is the duty of the State as well as the people to get involved and make involvement from both
the sides to have better health laws. They should make communities for such discussion and
promote the viewpoints. They should involve the participation at both national and international
levels. They should be encouraged in political decision making as well that are related to health.

V. RIGHT TO HEALTH AND THE INDIAN

CONSTITUTION WITH SPECIAL REFERENCE TO
ARTICLE 21:
The Preamble of the Constitution of India talks about India being a Republic State with social,
economic and political justice. It talks about equality both in status and opportunities. It even
talks about welfare state with a socialistic manner of the society which clearly comes under the
ambit of article 21 of the Indian Constitution which talks about the right to life and personal
liberty. Socialistic principles are evident in both Part III and Part IV of the Constitution in which
rights of the individual and dignity are protected. The term ‘Social Justice’ hereby, means that
everyone should be given access to health care facilities equally. There should even be equality
in the being the medical practitioner as well as having medical education so that the socio-
economic conditions of the citizens can be improved.

Article 21 of the Indian Constitution clearly says that “no person shall be deprived of his life or
personal liberty except according to the procedure established by law.”[3] Right to life is one of
the basic human rights and not even the State has the authority to violate that right.[4] Right to
health and proper health care is also a part of basic human right without health care there will be
no living with dignity and the life will be just mere existence. “Life”, in the Article 21 is not
merely the physical act of breathing.[5] Right to life having a wider ambit includes right to good
health care system as well as the right to have medical assistance when needed. No one should be
deprived of these facilities in any situation. The citizens should have the benefit of medical
insurance and aid. The Supreme Court relied on the international instruments and finally came to
the conclusion that the right to health is a Fundamental Right.[6] There are many cases in which
the Supreme Court has said the right to health is Fundamental Right coming under article 21 with
a proper medical care. Right to life includes the right to health.[7]
The government is under the constitutionally obliged to provide its citizens with proper health
facilities and those who cannot afford it should get subsidized rates and some medical health care
should be free of cost. The hospitals are under obligation to provide a casualty medical treatment
on time so as the patient should not lose his life hence violating the right to life of the patient.
Numerous Public Interest Litigations have been filed in the court of law for the violation of the
right to health. They have been filed on the inhumane conditions that are at times provided in
care homes, against the hazardous working conditions, against being the passive smokers in
public places, by the person suffering from HIV to have the rights guaranteed for them, by the
juvenile criminals to get proper treatment, by the mentally retarded patient, by the patient who is
in need of medical treatment in emergency cases and so on. The Constitution has incorporated
provisions which guarantee every individual right to attain the highest standard of mental as well
as physical health which can be attained.

The court has given some directions even for the serious medical cases such that to provide the
basic medical treatment at the public health care centres so that the present critical condition of
the patient can be stabilized. Even, the hospitals in the district and lower level should be
upgraded so that serious cases can be treated there and then and not referred to city hospitals.
Medical specialist of different areas should be recruited in district-level hospitals so that the
patients are getting specialized treatment. There should be a sufficient number of ambulances
and proper arrangement should be there so that it is easily available to the needy and the
ambulances should be well equipped with the specialized machinery so that it can stabilize the
deteriorating condition of the casualty in the ambulance itself till it reaches the hospital.

Coming to the Part IV the Directive Principle of State Policy in the Indian Constitution which
has incorporated many articles related to the right to health into it but the issues arising here is
that they are non-justiciable. Article 38 of the Indian Constitution says that “State to secure a
social order for the promotion of the welfare of the people” thereby meaning that for securing the
welfare of the people the State has to provide proper healthcare. Therefore, the State needs to
focus on the psychological and physical health of the people irrespective of their social,
economical, and political status. Article 42 of the Indian Constitution says that “Provision for
just and humane conditions of work and maternity relief” thereby meaning the State is obliged to
provide a healthy and friendly environment at work, such conditions should be made available to
all the citizens without any discrimination. The State has to intervene to provide and secure
proper conditions at work as well as provide the mother with the maternity relief of some months
which the government is doing in our country since years including anti-natal and post-natal.

The state should even look in the proper intake of nutrition to the born infants especially socially
as well as economically underprivileged families. Article 47 of the Indian Constitution says that
“The State shall regard the raising of the level of nutrition and the standard of living of its people
and the improvement of public health as among its primary duties and, in particular, the State
shall endeavour to bring about prohibition of the consumption except for medicinal purposes of
intoxicating drinks and of drugs which are injurious to health.” Here, it means that for the
consumer sovereignty the State keeps a positive interference for the benefit of the people. Here,
the public health is made at the prime importance and the State shall take care of it. Apart from
raising the current standard of health of the people the Constitution has made it clear for the
improvement of public health even that is being deteriorated by the consumption of intoxicating
drinks and drugs. These drugs can be used if they are into medicinal value to the individual. It is
necessary for the state to have conditions congenial for good health. The Food Corporation of
India is an agency which clearly certifies the quality of the food reaching to the market for the
human consumption. This agency should not allow substandard food to enter into the markets
which will cause health problems to people.

Under article 51(a) it is a Fundamental Duties of every citizen to protect and upgrade the present
conditions of the environment in all spheres which will help in better health conditions of the
human.

The State is obliged to provide clean drinking water, health care facilities which include
dispensaries, health care centres, hospitals and clinics, proper sanitation with cleanliness and
hygienic environment, family welfare especially woman and child welfare, not excluding social
welfare of the handicapped person.

The Constitution of India under part III guarantees fundamental rights which are essential
for the development of every individual and to which a person is inherently entitled by virtue of
being human alone. Right to environment is also a right without which development of
individual and realisation of his or her full potential shall not be possible. Articles 21, 14 and 19
of this part have been used for environmental protection.

According to Article 21 of the constitution, “no person shall be deprived of his life or
personal liberty except according to procedure established by law”. Article 21 has received
liberal interpretation from time to time after the decision of the Supreme Court in Maneka
Gandhi vs. Union of India, (AIR 1978 SC 597). Article 21 guarantees fundamental right to life.
Right to environment, free of danger of disease and infection is inherent in it. Right to healthy
environment is important attribute of right to live with human dignity. The right to live in a
healthy environment as part of Article 21 of the Constitution was first recognized in the case of
Rural Litigation and Entitlement Kendra vs. State, AIR 1988 SC 2187 (Popularly known as
Dehradun Quarrying Case). It is the first case of this kind in India, involving issues relating to
environment and ecological balance in which Supreme Court directed to stop the excavation
(illegal mining) under the Environment (Protection) Act, 1986. In M.C. Mehta vs. Union of
India, AIR 1987 SC 1086 the Supreme Court treated the right to live in pollution free
environment as a part of fundamental right to life under Article 21 of the Constitution.

Excessive noise creates pollution in the society. The constitution of India under Article 19
(1) (a) read with Article 21 of the constitution guarantees right to decent environment and right
to live peacefully. In PA Jacob vs. The Superintendent of Police Kottayam, AIR 1993 Ker 1, the
Kerala High Court held that freedom of speech under article 19 (1)(a) does not include freedom
to use loud speakers or sound amplifiers. Thus, noise pollution caused by the loud speakers can
be controlled under article 19 (1) (a) of the constitution.

Article 19 (1) (g) of the Indian constitution confers fundamental right on every citizen to
practice any profession or to carry on any occupation, trade or business. This is subject to
reasonable restrictions. A citizen cannot carry on business activity, if it is health hazards to the
 society or general public. Thus safeguards for environment protection are inherent in this. The
Supreme Court, while deciding the matter relating to carrying on trade of liquor in Cooverjee B.
Bharucha Vs Excise commissioner, Ajmer (1954, SC 220) observed that, if there is clash
between environmental protection and right to freedom of trade and occupation, the courts have
to balance environmental interests with the fundamental rights to carry on any occupations.

Public Interest Litigation under Article 32 and 226 of the constitution of India resulted in
a wave of environmental litigation. The leading environmental cases decided by the Supreme
Court includes case of closure of limestone quarries in the Dehradun region (Dehradun
Quarrying case, AIR 1985 SC 652), the installation of safeguard at a chlorine plant in Delhi
(M.C. Mehta V. Union of India, AIR 1988 SC 1037) etc. In Vellore Citizens Welfare Forum vs.
Union of India (1996) 5 SCC 647, the Court observed that “the Precautionary Principle” and “the
Polluter Pays Principle” are essential features of “Sustainable Development.”

At local and village level also, Panchayats have been empowered under the constitution
to take measures such as soil conservation, water management, forestry and protection of the
environment and promotion of ecological aspect.

Environment protection is part of our cultural values and traditions. In Atharvaveda, it

has been said that “Man’s paradise is on earth; this living world is the beloved place of all; It has
the blessings of nature’s bounties; live in a lovely spirit”. Earth is our paradise and it is our duty
to protect our paradise. The constitution of India embodies the framework of protection and
preservation of nature without which life cannot be enjoyed. The knowledge of constitutional
provisions regarding environment protection is need of the day to bring greater public
participation, environmental awareness, environmental education and sensitize the people to
preserve ecology and environment.

Q. Doctrine of Res Ipsa Loquitur:

Res ipsa loquitur is a Latin maxim whose meaning is “the things tells
its own story”. The doctrine of Res Ipsa Loquitur has three elements:

1. the injury that had occurred under the circumstances must be explicit
and can only occur due to someone’s negligence and it cannot occur in
the ordinary situations.
2. the injury caused by the defendant to the plaintiff must have been
done with the use of some instrument which was exclusively under the
control of the defendant.
3. the injury caused to the plaintiff must be under the scope of the
defendant’s duty and it must not be due to the voluntary act or the
contribution from the plaintiff’s side.
The first condition of doctrine is technical in nature and is difficult to
prove plaintiff being the layman in respect to medical science cannot
prove the medical negligence based on his/her common knowledge.

In Jaspal Singh v. Medical college case, the patient, blood group was
A+ was give n B+ blood on two different fays, and he died soon
thereafter.

Q. Explain Negligence by Professional and Negligence by Medical Professional

with the help of Jacob Mathew's Case (Jacob Mathew vs. State of Punjab 2005 Cri
Li 3710).

A tort is a residuary civil wrong. Duties in tort are fixed by the law and
such duties are owed in rem or to the people at large generally. Such
wrongs can be remedied by filing for unliquidated damages. Negligence
is a tort. A negligence is the omission to do something which a
reasonable man, guided by those considerations which ordinarily
regulate the conduct of human affairs, would do or doing something
which a prudent and reasonable man would not do. In this article, we
shall discuss medical negligence.

Medical Negligence basically is the misconduct by a medical

practitioner or doctor by not providing enough care resulting in breach
of their duties and harming the patients which are their consumers.
Medical negligence occurs when a doctor, dentist, nurse, surgeon or any
other medical professional performs their job in a way that deviates from
this accepted medical standard of care. A medical professional is not
liable in all cases where a patient has suffered an injury. He might have a
valid defense that he has not breached the duty of care.

Medical negligence has caused many deaths as well as adverse results to

the patient’s health. Some examples of medical negligence are as
follows:
 improper administration of medicines.
 performing the wrong or inappropriate type of surgery.
 not giving proper medical advice.
 leaving any foreign object in the body of the patient such as a sponge or
bandage, etc. after the surgery.

Mens Rea at Medical Negligence:

Negligence is a tort. The concept of mens rea is not applicable in torts. If

doctor’s rash or negligent act endangers human life or personal safety of
his patient, he can be tried for criminal liability. In Jacob Mathew case
the Court held that in criminal law medical professionals are placed on a
pedestal different from ordinary mortals. It was further held that to
prosecute the medical professionals for negligence under criminal law,
something more than mere negligence had to be proved. Medical
professionals deal with patients and they are expected to make the best
decisions in the circumstances of the case. Sometimes, the decision may
not be correct, and that would not mean that the medical professional is
guilty of criminal negligence. Such a medical professional may be liable
to pay damages but unless negligence of a high order is shown the
medical professionals should not be dragged into criminal proceedings.

Dr. Jacob Mathew v. State of Punjab case:

A patient named Jiwan Lal was admitted to a private ward in CMC

Hospital, Ludhiana. The patient suddenly had difficulty in breathing.
His elder son called the nurse and doctor after seeing his father’s
condition. No doctor turned up for about 20-25 minutes. After that,
Dr. Jacob Mathew and Dr. Allen Joseph came to the room for the
patient. The patient was immediately connected with an oxygen
cylinder to his mouth which was empty. The son went to the adjoining
room and brought another gas cylinder. During this, the doctor
confirmed that the patient is dead. The younger son, Ashok Kumar
Sharma filed a First Information Report (FIR) under Section 304A
 (causing death by negligence) read with Section 34 (common intention
of criminal activity) of the IPC.

The Court observed that all the averments made in the complaint, even
if held to be proved, do not make out a case of criminal rashness or
negligence on the part of accused-appellant. There was no challenge to
qualifications or method of treatment by the doctors. It is a cause of
non-availability of oxygen cylinder for which hospital may be held
liable in civil law but the accused-appellant cannot be proceeded
against under Section 304-A of IPC on the parameters of Bolam’s test.
Hence, the prosecution of the accused-appellant under Section
304A/34 is quashed. The Supreme Court prescribed following
guidelines:

 A private complaint may not be entertained unless the complainant

has produced prima facie evidence before the Court in the form of a
credible opinion given by another competent doctor to support the
charge of rashness or negligence on the part of the accused doctor.
 The investigating officer should, before proceeding against the doctor
accused of rash or negligent act or omission, obtain an independent
and competent medical opinion preferably from a doctor in
government service qualified in that branch of medical practice who
can normally be expected to give an impartial and unbiased opinion
applying Bolam’s test to the facts collected in the investigation.
 A doctor accused of rashness or negligence, may not be arrested in a
routine manner (simply because a charge has been leveled against
him). Unless his arrest is necessary for furthering the investigation or
for collecting evidence or unless the investigation officer feels
satisfied that the doctor proceeded against would not make himself
available to face the prosecution unless arrested, the arrest may be
withheld.
 That is why in Jacob Mathew’s case the Court held that in case of
criminal negligence against a medical professional it must be shown
that the accused did something or failed to do something in the given
facts and circumstances of the case which no medical professional in
his ordinary senses and prudence would have done or failed to do.

Q. a) The preventive measures of mental illness can work at three levels' —

Explain those three levels

Mental illness is often a hidden problem in the community because people don’t
know much about mental illness and so they don’t notice it. They may also be frightened
by mental illness and ashamed if a family member has symptoms of mental illness, and
consequently hide away people who are affected by these problems. One of the most
important things that you can do to help people with mental illness is to increase
awareness and understanding in the communities where you live and work.

Prevention includes a wide range of activities — known as

“interventions” — aimed at reducing risks or threats to health. You
may have heard researchers and health experts talk about three
categories of prevention: primary, secondary and tertiary. What do
they mean by these terms?

Primary prevention
Primary prevention aims to prevent disease or injury before it ever
occurs. This is done by preventing exposures to hazards that cause
disease or injury, altering unhealthy or unsafe behaviours that can
lead to disease or injury, and increasing resistance to disease or injury
should exposure occur. Examples include:

 legislation and enforcement to ban or control the use of

hazardous products (e.g. asbestos) or to mandate safe and
healthy practices (e.g. use of seatbelts and bike helmets)
 education about healthy and safe habits (e.g. eating well,
exercising regularly, not smoking)
 immunization against infectious diseases.

Secondary prevention
Secondary prevention aims to reduce the impact of a disease or injury
that has already occurred. This is done by detecting and treating
disease or injury as soon as possible to halt or slow its progress,
encouraging personal strategies to prevent reinjury or recurrence, and
implementing programs to return people to their original health and
function to prevent long-term problems. Examples include:

 regular exams and screening tests to detect disease in its earliest

stages (e.g. mammograms to detect breast cancer)
 daily, low-dose aspirins and/or diet and exercise programs to
prevent further heart attacks or strokes
 suitably modified work so injured or ill workers can return safely
to their jobs.

Tertiary prevention
Tertiary prevention aims to soften the impact of an ongoing illness or
injury that has lasting effects. This is done by helping people manage
long-term, often-complex health problems and injuries (e.g. chronic
diseases, permanent impairments) in order to improve as much as
possible their ability to function, their quality of life and their life
expectancy. Examples include:

 cardiac or stroke rehabilitation programs, chronic disease

management programs (e.g. for diabetes, arthritis, depression,
etc.)
 support groups that allow members to share strategies for living
well
 vocational rehabilitation programs to retrain workers for new
jobs when they have recovered as much as possible.

Q. What are the types and causes of mental illness?

What is mental illness?

A mental illness is a health issue. It can affect your thoughts, mood, or
behaviour. It can impact the way you perceive the world around you.
A mental illness can cause distress. It may affect how you cope at work, how you
function in relationships and your ability to manage everyday tasks.

Mental illnesses can last for a short time or for your whole life. Some mild
mental illness lasts only a few weeks. Sometimes severe illnesses can be life-
long and cause serious disability.

Each year, about 1 in every 5 Australians will experience a mental illness. Almost
half the population has experienced a mental health disorder at some time in
their life.

What are the types of mental illness?

There are many different types of mental illness. Some of the main groups of
mental health disorders are:

 mood disorders (such as depression or bipolar disorder)

 anxiety disorders
 personality disorders
 psychotic disorders (such as schizophrenia)
 eating disorders
 trauma-related disorders (such as post-traumatic stress disorder)
 substance abuse disorders

What causes mental illness?

Researchers are still trying to understand what causes mental illness. There is not
simply one cause, and often it is a complex mix of factors. These can include
genetics and aspects of social learning, such as how you grew up.

It can also be impacted by how your brain works and the interplay with your
environment. Your social group, your culture and life experience can also play a
part in the development of a mental illness.

Some examples of these factors include:

 Genetic factors — having a close family member with a mental illness can
increase the chance that you might get a mental illness. However, just
 because one family member has a mental illness doesn't mean that others
will.
 Drug and alcohol abuse — illicit drug use can trigger a manic episode
(bipolar disorder) or an episode of psychosis. Drugs such
as cocaine, marijuana and amphetamines can cause paranoia.
 Other biological factors — some medical conditions or hormonal changes
can cause mental health problems.
 Early life environment — negative childhood experiences can increase the
risk of some mental illnesses. Examples of negative childhood experiences
are abuse or neglect.
 Trauma and stress — in adulthood, traumatic life events or ongoing stress
can increase the risk of mental illness. Issues such as social
isolation, domestic violence, relationship breakdown, financial or work
problems can impact on mental health. Traumatic experiences such as living
in a war zone can increase the risk of post-traumatic stress disorder (PTSD).
 Personality factors — some traits such as perfectionism or low self-
esteem can increase the risk of depression or anxiety.

Q. What are the treatments for those who are addicted to drugs?

Drugs are chemical substances that can change how your body and mind work. They
include prescription medicines, over-the-counter medicines, alcohol, tobacco, and illegal
drugs.

Drug addiction is a chronic brain disease. It causes a person to take drugs repeatedly,
despite the harm they cause. Repeated drug use can change the brain and lead to
addiction.

The brain changes from addiction can be lasting, so drug addiction is considered a
"relapsing" disease. This means that people in recovery are at risk for taking drugs
again, even after years of not taking them.

What are the treatments for drug addiction?

Treatments for drug addiction include counseling, medicines, or both. Research shows that
combining medicines with counseling gives most people the best chance of success.

The counseling may be individual, family, and/or group therapy. It can help you:

 Understand why you got addicted

 See how drugs changed your behavior
 Learn how to deal with your problems so you won't go back to using drugs
 Learn to avoid places, people, and situations where you might be tempted to use drugs
Medicines can help with the symptoms of withdrawal. For addiction to certain drugs, there are also
medicines that can help you re-establish normal brain function and decrease your cravings.

If you have a mental disorder along with an addiction, it is known as a dual diagnosis. It is important
to treat both problems. This will increase your chance of success.
If you have a severe addiction, you may need hospital-based or residential treatment. Residential
treatment programs combine housing and treatment services.

Can drug use and addiction be prevented?

Drug use and addiction are preventable. Prevention programs involving families, schools,
communities, and the media may prevent or reduce drug use and addiction. These programs include
education and outreach to help people understand the risks of drug use.

.Q. (a) Discuss the Bhopal Gas Leak Case and the principle that is applied in this
case.

It seems that the UCIL was trying to minimize cost by compromising with the
health and safety standards. There is no sensitivity towards the environment or
the wellbeing of the locals residing around the plant. The loss could have been
significantly less if only UCC had a crisis management plan. Instead, the plant
focused on evading liability, withholding information and ignoring the impact. It
accepted moral responsibility but denied legal liability[xvi].

UCC admitted in their own investigation report that most of the safety systems
were not
functioning on the night of the 3rd December 1984:[xvii]
· Tank temperatures were not logged;
· The vent gas scrubber (VGS) was not in use;
· The cooling system was not in use;
· A slip bind was not used when the pipes were washed;
· The concentration of chloroform in Tank 610 was too high;
· The tank was not pressurised;
· Iron was present because of corrosion;
· The tank’s high-temperature alarm was not functioning;
· Tank 619 (the evacuation tank) was not empty.

This shows how the safety of the workers as well as the city was taken casually.
The company was reluctant in investing more in the safety standards as the
plant was already in loss. Further, it seems that the lack of governmental
pressure and monitoring did not invoke any sense of urgency for the company.
Standards in place
The legislation in place were the Water (Prevention and Control of Pollution)
Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981. These
acts were not very effective to check non-compliance[xviii]. The acts provided
that firms not complying with pollution control regulations will be fined.
Organisations found it economically advantageous to avoid compliance with the
law and pay the penalty. If based on torts, the organisations will just pay the
damages and continue the violation. Criminal proceedings were complex and
uncertain. The industries were able to freely discharge their effluents into water
without an Environmental Impact Assessment. There was no compulsion to
have an EIA.

Steps taken after the disaster

It is a sad truth that such a tragic incident had to happen for us to realise the
importance of safety standards.

In response to the disaster, the government brought forth various legislations.

This marked the shift in the consciousness with regard to environmental issues.
The legislative developments are outlined below.

The principle of absolute liability

The English Principle of strict liability as laid down by Ryland vs Fletcher[xix],
was the governing principle in India before M.C Mehta vs Union of India[xx]. In
this case, the Supreme Court increased the bar of tortious liability when it held
that an enterprise engaging in any harmful or inherently dangerous activity had
an absolute and ‘ non-delegable’ duty to ensure that no one was harmed, and if
anyone was harmed, they were to be compensated. The Supreme Court did not
accept the exceptions which had evolved in English jurisprudence regarding
strict liability. Bhagwati. J states in the case that, “We have to develop our own
law and if we find that it is necessary to construct a new principle of liability to
deal with an unusual situation which has arisen and which is likely to arise in
future on account of hazardous or inherently dangerous industries which are
concomitant to an industrial economy, there is no reason why we should
hesitate to evolve such principle of liability merely because it has not been so
done in England.”

This ruling was significant in that the Supreme Court determined the effective
control in the Indian scenario ‘to regulate an environment in which industrial
growth was not matched with necessary legal reform’[xxi]

The Environment Protection Act was enacted in 1986. The act defines the
environment and authorizes the central government to take all such measures
as it deems necessary or expedient for the purposes of protecting and
improving the quality of the environment and preventing, controlling and
abating environmental pollution[xxii]. In this connection, the central
government has the authority to issue direct written orders including orders to
close, prohibit, or regulate any industry, operation or process or to stop or
regulate the supply of electricity, water or any other service[xxiii]. The act
conforms to the commitments made by the Stockholm Declaration, 1972.

The Factories Act was amended to include the list of hazardous

industries[xxiv] and the provision to locate an industry[xxv]. The Central and
State Pollution Control Board laid down comprehensive industrial standards for
the control of effluents and emissions.

The Public Liability Insurance Act, 1991 is another act with an aim to provide
immediate relief to the victims affected by accidents while handling hazardous
substances and for matters connected therewith or incidental thereto. The Act
incorporates a provision making it mandatory for the industrial units that every
owner shall take out before he starts handling any hazardous substance, one or
more insurance policies and renews it or them from time to time before the
expiry of validity[xxvi]. It will allow the victims of such incidents to get
compensation immediately, which will not bar them to seek larger
compensation. The act recognises the ‘absolute liability or no-fault liability’
doctrine.

Acknowledging the need to deal with the cases related to the environment
effectively and expeditiously, the government established a National Green
Tribunal in 2010 through the National Green Tribunal Act, 2010. The tribunal
exclusively deals with the cases arising out of environmental issues.

After the Bhopal Gas Tragedy, the importance of environmental regulation

became starkly evident. The inadequate measures and the vacuum in the legal
system were also exposed. The Supreme Court, in order to fill such loopholes,
applied Judicial Activism. The scope of Article 21 was considerable widened to
include the right to a clean environment. This way, environmental concerns
became the part of the constitution as well as the rights of the citizens.

The Environment Impact Assessment Notification in 1994 was also a significant

step to calculate risks associated with any project which will determine whether
or not it is granted clearance.

Hazardous Wastes (Management, Handling and Transboundary Movement)

Rules, 2008, provide for means of safe storage and disposal of “hazardous
waste” (which is listed in its schedules) with the help of central and state
pollution control boards[xxvii].

Chemical Accidents (Emergency Planning, Preparedness, and Response) Rules,

1996 was also enacted, which address gas leaks and similar events. The
Chemical Accidents Rules seem to have been framed for the exact purpose of
monitoring plants or industries like the UCC in Bhopal[xxviii].

The state pollution control boards are required to give the industry consent to
establish and then consent to operate. But all that the pollution boards do is to
process the consent and authorisation. They do not have time to monitor
compliance with standards for pollution or enforce their directions[xxix].

There is also no deterrence in the system. The maximum penalty imposed by

courts under the Water (Prevention and Control of Pollution) Act is Rs 10,000
and under EPA, it is Rs 1 lakh. But only courts can impose this penalty. So all
the boards can do is to either deny the consent to operate or issue closure
notice for 30 days[xxx].

These problems need to be fixed before it is too late to save the environment.

CONCLUSION
India is a developing nation and hence is open to foreign investors so as to
induce growth in its economy. Industrialization is encouraged in order to be
globalised. However, we should not lose sight of the effect these industries have
in the long run on the environment and the health of the people. India needs to
rigid when it comes to enforcement of the legislation in place so that we do not
pay such a heavy price again. UCIL got away with such blatant violations
because the enforcement was too weak to serve as a deterrent.
Are human lives in India so disposable that we are ready to pass off the incident
as an unfortunate accident? There is no way to replace the thousands of lives
lost all that can be done is to ensure that the ones that have been left behind
can lead a comfortable life and cope up with the loss. The industrial disaster
catalyzed a paradigm shift in terms of environmental awareness, environmental
policy, judicial activism and human rights. It forced the government and public
alike to treat these issues with utmost priority.

Q.What directions were given by the Supreme Court in the case of MC Mehta
Union of India (AIR 1987 SC 1086).

MC Mehta vs Union of India case, also known as the Oleum Gas

Leakage case, established the rule of absolute liability by which
the wrongdoer is liable even without his fault and with no
exceptions.
Facts of MC Mehta v Union of India:

1. A writ petition was filed by M.C Mehta Articles 21 and 32 of the Constitution.
He sought closure for Shriram Food and Fertilizer as it was engaged in the
manufacturing of hazardous substances and located in a densely populated area
of Kirti Nagar. While the petition was pending, there was a leakage of oleum gas
from one of its units, which caused the death of an advocate and affected the
health of several others.

2. Just one year after the Bhopal gas disaster, a large number of persons–both
amongst the employees and public were affected. This incident also reminds us
of the Bhopal gas holocaust.

3. Factories were closed down immediately as Inspector of Factories and

Commissioner (Factories) issued separate orders. This incident took place only
a few months before Environment (Protection) Act came into force, thus
becoming a guiding force for having an effective law like this.

Contention & Issue:

1. Whether such hazardous industries to be allowed to operate in such

areas?
2. If they are allowed to work in such areas, whether any regulating
mechanism be evolved?
3. How to determine liability and amount of compensation?
Ratio & Decision in MC Mehta Case:

1. Bench of five SC judges headed by Justice PN Bhagwati laid down the

principle of ABSOLUTE LIABILITY in this oleum gas leak case.

2. Even though the hazardous industries have to be set up since they are
essential for economic development and advancement of society but they
cannot absolve themselves of the responsibility by showing either that they
were not negligent in dealing with the hazardous substance or they took all the
necessary and reasonable precautions while dealing with it.

Thus, the court applied the principle of no-fault liability in this case, which was of
an absolute nature, with no exceptions. Before it set this principle up i.e. before
1987, these hazardous industries used to escape from their liability using
exceptions of strict liability principle.

3. Court also quoted Rylands vs Fletchers case in the judgment where they
emphasized that the rule of strict liability have some exceptions which was
developed in 1866, when considerable developments of science and technology
had not taken place by which such hazardous industries were not established in
such close vicinity to thickly populated areas at that time.
The law needs to be modified as the society progress. Thus, the court made the
industry “absolutely liable” and compensation to be paid as when the injury
was proved without requiring the industry to be present in the case.

Aftermath of this case

Some of the conditions were formulated by the government guided

by Manmohan Singh Committee and Nilay Choudhary Committee to
implement the directions given in M.C. Mehta vs Union of India 1978 (SCC
1086).
Q. Discuss the rights and duties of HIV / AIDS patients.

The Human Immunodeficiency Virus and Acquired Immunodeficiency Syndrome, commonly

referred to as HIV/AIDS, is amongst the most catastrophic epidemics the world has ever
witnessed. The World Health Organization estimates that nearly 35 million people have died
from AIDS-related causes as of July 2016 and 36.7 million people worldwide were living with
HIV/AIDS at the end of 2015. HIV attacks the body's immune system, destroying cells that fight
off infections.

The human body can never get rid of HIV completely causing it to be a lifelong disease. If left
untreated, HIV can lead to AIDS. This is the final stage of HIV when the immune system
becomes severely damaged and vulnerable to opportunistic infections. Depending on the
degree of severity, people who are diagnosed with AIDS survive about 1-3 years.

India's first reported HIV case was among the sex workers in Chennai, Tamil Nadu in 1986.
Given the rapid spread of HIV/AIDS in the late 1980's, India launched the first National AIDS
Control Program (1992-1999) to coordinate national efforts covering surveillance, blood
screening, and health education2 where the National AIDS Control Organization (NACO) was to
oversee the implementation of this program.3

Despite these national efforts, the spread of this virus continued and became more prominent
among the general population previously seen as low-risk. During this time there was an
emergence of community-based organizations (CBOs) that provided services to people infected
and affected by HIV based on observed need. With the free antiretroviral treatment (ART)
initiative laid out by the Government of India in 2004, the battle against HIV/AIDS shifted from
mostly providing a safe haven for those that were dying to providing the care, treatment, and
support that people infected and affected with HIV need in order to live healthier lives.

People living with HIV/AIDS face discrimination, especially in the villages, where they are often
treated as outcastes. Their children also suffer - whether they have HIV/AIDS or not - as they are
treated with contempt in schools and the community. When the parents of these children die,
no one comes forward to take their responsibility, not even their relatives.

HIV/AIDS is one of the biggest challenges faced by India. There are about three million people
suffering from HIV/AIDS in India. The socioeconomic condition of the country coupled with the
traditional outlook and the myths associated with the things has made it more vulnerable to
the disease People infected with HIV/AIDS are discriminated at every place and are looked upon
in the society.
1. Legal Provisions In International Conventions
Union of India has signed various treaties, agreements and declarations relating to
HIV/AIDS, the protection of rights of those who are HIV positive, those who are affected
by HIV/AIDS and those who are most vulnerable to HIV/AIDS in order to secure their
human rights and prevent the spread of HIV/AIDS. The two conventions that aim at
nondiscrimination on the basis of creed, political affiliation, gender, or race are the
International Covenant on Civil and Political Rights, the International Covenant on
Economic, Social and Cultural Rights.

The Universal Declaration of Human Rights also lays down that the principle of non-
discrimination is fundamental to human rights law. It equally applies to people suffering
from HIV/AIDS because they have to suffer a very high level of stigma and
discrimination. It lays down certain work related provisions for a HIV/AIDS infected
people which includes right to life, liberty and security of person, no person should be
subjected to forced testing and/or treatment or otherwise cruel or degrading treatment,
all people including HIV+ persons have the right to work and participate in the cultural
 life of the community, to enjoy the arts and to share in scientific advancement and its
benefits and all persons including the people living with a positive 'HIV' diagnosis are
equal before the law and are entitled without any discrimination to equal protection by
the law. People diagnosed with HIV+ are also entitled the rights enshrined in Art. 25(1) of
the Declaration which includes the right to adequate standard of living, assistance,
medical care and necessary social services, and the right to security in the event of
unemployment.

The UNAIDS Guidelines, 1996 emphasizes on the duty of the states to engage in law
reform. It also guides the states to identify legal obstacles so as to form an effective
strategy of HIV/AIDS prevention and care. It also lays stress on enactment of anti-
discrimination and other protective laws that would protect HIV/AIDS diagnosed people
from discrimination in both the public and private sectors would ensure their privacy,
confidentiality and ethics in research involving human subjects and would lay emphasis
on education and conciliation and provide for speedy and effective administrative and
civil remedies.

2. Legislations/Policies/Guidelines In India
Law and policy are the bulwarks of human rights. The provisions in the Constitution of
India protect the rights of HIV/AIDS affected people. Article 14 guarantees the right of
equality of treatment to HIV/AIDS patients. Articles 15 and 16 prohibit discrimination in
public facilities and public employment respectively.
Article 21 protects the right to life, personal liberty and ensures the right to privacy.
Chapter IV enshrining The Directive Principles of State Policy directs States to ensure
that all citizens including HIV/AIDS patients have an adequate mean of livelihood, to
make provisions for securing just and humane conditions of work, to improve public
health vide Article 39, 42 and 47 respectively.9

However, these general provisions of the constitution were insufficient in dealing with
the specific problems of the HIV/AIDS community. In an attempt to address the looming
and unresolved social, economic and legal struggles faced by HIV affected people in
India, the first HIV/AIDS Bill was drafted in 1989.

However, it was subsequently withdrawn as it had several discriminatory provisions

such as mandatory testing and confinement of infected persons. The need for a new
HIV/AIDS Bill was recognized at the International Policy Makers Conference on HIV/AIDS,
held in New Delhi in May 2002. An Advisory Working Group (AWG), spearheaded by the
National AIDS Control Organization (hereinafter NACO), was set up.

It comprised of members from civil society, PLWHA, and the government. The NGO
Lawyers Collective's HIV/AIDS Unit was approached to draft a new HIV legislation. After
consultation with PLWHA, marginalized groups, healthcare workers, women and
children's groups, state governments, NGOs, and lawyers rights centric draft Bill was
submitted to NACO.

i. The Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency

Syndrome (AIDS) (Prevention and Control) Act, 2017:
The Indian Parliament has passed the Human Immunodeficiency Virus (HIV) and
Acquired Immune Deficiency Syndrome (AIDS) (Prevention and Control) Act,
2017. It is the first national HIV law in South Asia. There is a need to protect and
secure the human rights of persons who are HIV-positive, affected by Human
Immunodeficiency Virus and Acquired Immune Deficiency Syndrome and
vulnerable to the said virus and syndrome; there is a need to protect the rights
of healthcare providers and other persons in relation to Human
Immunodeficiency Virus and Acquired Immune Deficiency Syndrome.

HIV or Human Immunodeficiency Virus is, simply put a sexually transmitted virus
that attacks your immune system or more specifically a type of white blood cell
called the T-helper cell. This means that if left untreated, a person over time will
gradually become vulnerable to even the most common of infections or
diseases. HIV is such a dangerous disease which kills the patient silently.

Moreover, the HIV infected persons psychological depressed and frustrates. HIV
is a lifelong disease that people must live with; however, more than the disease
itself it is the public stigma and prejudice attached to this particular disease that
can make it difficult for a person to live peacefully. With people having gross
misconceptions of what exactly is HIV, thinking it is contagious like a common
cold and more, an HIV positive person must suffer through a lot of
discrimination by the society. Helping HIV infected person with his legal rights is
necessary as that will help him to survive little longer.

Union of India has signed various treaties, agreements and declarations relating
to HIV/AIDS, the protection of rights of those who are HIV positive, those who are
affected by HIV/AIDS and those who are most vulnerable to HIV/AIDS in order to
secure their human rights and prevent the spread of HIV/AIDS.

The two conventions that aim at non discrimination on the basis of creed,
political affiliation, gender, or race are the International Covenant on Civil and
Political Rights, the International Covenant on Economic, Social and Cultural
Rights. They also cover within their ambit non-discrimination of the people
infected with HIV.

ii. Indian Medical Council Act, 1956 (Professional Conduct, & Ethics)
Regulations, 2002):The Medical Council of India lays down certain duties that
have to be observed by the doctors towards the HIV/AIDS patients.
These are enumerated below:
 a. Duty to take care and to take informed consent from the patient.
b. Disclosure of information & risks to the patient
c. Provide information of options available & benefits
d. Duty to warn
e. To admit patient in emergency without consent
f. The physician should not abandon his duty for fear of contracting the
disease.

iii. Immoral Trafficking Prevention Act, 1986:

Immoral Trafficking Prevention Act, 1986 deals with sex work in India. The Act
provides for conducting compulsory medical examination for detection of
HIV/AIDS.

iv. Other Legislations, polices and agencies which provide protection to the
HIV/AIDS patients are:

a. Indian Penal Code, 1860

b. Drugs and Cosmetic Act, 1940
c. Juvenile Justice (Care and Protection of Children) Act, 2015.
d. Maharashtra Protection of Commercial Sex Workers, Bill, 1994.
e. Medical Termination of Pregnancy Act, 1971
f. Narcotic Drugs and Psychotropic Substances Act, 1985.
g. National AIDS Control Organization (NACO), Department of AIDS
Control, Policies and Guidelines.

v. Guidelines for HIV infected Adults and Adolescents:

a. Condom Promotion by SACS - Operational Guidelines

b. Data Sharing Guidelines
c. Guidelines for HIV Care and Treatment in Infants and Children, Nov 2006
d. Guidelines for HIV Testing, March 2007
e. Guidelines for Network of Indian Institutions for HIV/AIDS Research
(NIHAR).
f. Guidelines for Prevention and Management of Common Opportunistic
g. Infections Guidelines for Setting up Blood Storage Centers
h. Link Worker Scheme(LWS) Operational Guidelines
i. NACO Ethical Guidelines for Operational Research
j. NACO IEC Operational Guidelines
k. NACO Research Fellowship-Scheme Under NACP-III
l. National Guidelines on Prevention, Management & Control of
Reproductive Tract Infection
m. National Guidelines on Prevention, Management & Control of RTI
including STI.
 vi. National Policy on HIV/AIDS and the World of Work:

a. Procurement Manual for National AIDS Control Programme (NACP III)

Standards for Blood Banks and Blood Transfusion Services
b. Surveillance Operational Guidelines
c. Targeted Intervention for Migrants Operational Guidelines

vii. Targeted Interventions for High Risk Groups (HRGs):

a. Targeted Interventions for Truckers Operational Guidelines

b. Voluntary Blood Donation An Operational Guidelines
c. National AIDS Control and Prevention Policy (NACPC)
d. National Blood Policy (NIHFW)
e. National AIDS Control Programme (NIHFW)
f. National AIDS Prevention and Control Policy
g. Suppression of Immoral Traffic in Women and Girls Act, 1956
h. Young Persons (Harmful Publications) Act, 1956
i. National AIDS Prevention and Control Policy
j. The Indian Employers' Statement of Commitment on HIV/AIDS
k. Joint Statement of Commitment on HIV/AIDS of the Central Trade Unions
in India
l. ILO Code of Practice on HIV/AIDS and the World of Work
m. State AIDS Control Societies
n. National Human Rights Commission.

viii. Rights of HIV affected People:

While a specific law to protect the rights of HIV positive people is in the process
of being formulated, there are certain basic rights that the Constitution of India
guarantees to all citizens and stand applicable even if a person if HIV positive.
These are:

a. Right to Informed Consent:

Consent has to be free. It should not be obtained by coercion, mistake,
fraud, undue influence or misrepresentation. Consent also needs to be
informed. This is particularly important in a doctor- patient relationship.
The doctor knows more and is trusted by the patient. Before any medical
procedure, a doctor is supposed to inform the patient of the risks
involved and the alternatives available so the person can make an
informed decision to undertake the procedure or not. The implications of
HIV are very different from most other illnesses. That's why testing for
HIV requires specific and informed consent from the person being tested.
Consent to another diagnostic test cannot be taken as implied consent
for an HIV test. If informed consent is not taken, the concerned person's
rights may have been violated and he/she can seek a remedy in court.
 b. Right to Confidentiality:
When a person tells someone in whom she/he places trust something in
confidence, it is meant to be confidential. Sharing it with others thus
amounts to a breach of confidentiality. A doctor's primary duty is towards
the patient and she/he should maintain the confidentiality of information
imparted by the patient. If a person's confidentiality is either likely to be
breached or has been beached, the person has the right to go to court
and sue for damages. People living with HIV/AIDS (PLWHAs) are often
afraid to go to court to vindicate their rights for fear of their HIV status
becoming public knowledge. However, they can use the tool
of Suppression of Identity whereby a person can litigate under a
pseudonym (not the real name.). This beneficent strategy ensures that
PLWHAs can seek justice without fear of social ostracism or
discrimination.

c. Right Against Discrimination:

The right to equal treatment is a fundamental right. The law provides that
a person may not be discriminated against on any grounds of sex,
religion, caste, creed, descent or place of birth etc. either socially or
professionally by a government-run or government controlled institution.
The right to public health is also a fundamental right - something which
the state is supposed to provide to all persons. HIV positive persons
seeking medical treatment or admission to a hospital cannot be rejected.
If they are denied treatment, they have remedy in law. Similarly, a person
with HIV may not be discriminated against due to her/his positive status
in an employment scenario. Termination in such a situation would give
that person an opportunity to seek legal redress. Someone who is HIV
positive but otherwise fit to continue the job without posing substantial
risk to others cannot be terminated from employment. This has been
held by the Bombay High Court in May 1997.

3. Special Provisions Relating To Children Infected With HIV Or AIDS

i. The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome
(Prevention and Control) Act, 2017:
Section 2(c) defines child affected by HIV means a person below the age of
eighteen years, who is HIV-positive or whose parent or guardian (with whom
such child normally resides) is HIV-positive or has lost a parent or guardian (with
whom such child resided) due to AIDS or lives in a household fostering children
orphaned by AIDS.

Section 16 provides for the Protection of property of children affected by

HIV or AIDS:
1. The Central Government or the State Government, as the case may be,
shall take appropriate steps to protect the property of children affected
by HIV or AIDS for the protection of property of child affected by HIV or
AIDS.

2. The parents or guardians of children affected by HIV and AIDS, or any

person acting for protecting their interest, or a child affected by HIV and
AIDS may approach the Child Welfare Committee for the safe keeping
and deposit of documents related to the property rights of such child or
to make complaints relating to such child being dispossessed or actual
dispossession or trespass into such child's house.

Explanation: For the purpose of this section, Child Welfare

Committee means a Committee set-up under the Juvenile Justice (Care
and Protection of Children) Act.

Section 18 lays down provisions for Women and children infected

with HIV or AIDS:

1. The Central Government shall lay down guidelines for care,

support and treatment of children infected with HIV or AIDS.

2. Without prejudice to the generality of the provisions of sub-

section (1) and notwithstanding anything contained in any other
law for the time being in force, the Central Government, or the
State Government as the case may be, shall take measures to
counsel and provide information regarding the outcome of
pregnancy and HIV-related treatment to the HIV infected women.

3. No HIV positive woman, who is pregnant, shall be subjected to

sterilisation or abortion without obtaining her informed consent.

Section 32 provides for Recognition of guardianship of older sibling:

Notwithstanding anything contained in any law for the time being in
force, a person below the age of eighteen but not below twelve years,
who has sufficient maturity of understanding and who is managing the
affairs of his family affected by HIV and AIDS, shall be competent to act as
guardian of other sibling below the age of eighteen years for the
following purposes, namely:

d. admission to educational establishments;

e. care and protection;
f. treatment;
 g. operating bank accounts;
h. managing property; and
i. any other purpose that may be required to discharge his duties as
a guardian.

Explanation: For the purposes of this section, a family affected by

HIV or AIDS means where both parents and the legal guardian is
incapacitated due to HIV-related illness or AIDS or the legal
guardian and parents are unable to discharge their duties in
relation to such children.

The Juvenile Justice (Care and Protection of Children) Act, 2015:

The definition of "child in need of care and protection" under Section 2 (14) of
the Juvenile Justice (Care and Protection of Children) Act, 2015 also includes
children who are mentally or physically challenged or ill children or children
suffering from terminal diseases or incurable diseases and do not have anyone
to support or look after them. A differently abled person has been described as
one who finds it difficult to perform normal physical and/or mental function
because of an impairment When the normal functioning of an individual is
interfered with by such impairment, the person becomes a handicapped.

Therefore, children who suffer from such impairment require care and special
attention. However, since such children are generally educated in separate
schools their interaction with other children is reduced to the minimum. As a
result such children remain isolated and it becomes difficult to integrate them in
society. This can quite often lead to lack of self- confidence, low self esteem and
feeling of being discriminated by others. Consequently these differently - abled
children are also most likely to be neglected, abused and abandoned.

The problem of HIV/ AIDS is one which has affected people of all countries. It has
assumed epidemic proportions and is a matter of serious concern throughout
the world. Not only adults but children have also not been spared by this
disease.. Children who are infected with HIV/AIDS are majority of the time
victims of circumstances. Consequently such children are at the risk of facing
social exclusion.

Therefore, such children need all types of case especially residential care, foster
care, medical care, medical follow up and other forms of protection.

Some of the children who are more vulnerable are:

i. Children who are confirmed as infected by the virus

ii. Children born to HIV positive mothers acquiring the virus in the womb.
iii. Children who require blood transfusion due to any illness.
 iv. Children who are addicted to drugs.
v. Children who are sexually abused and exploited.
vi. Children become affected because their parents or siblings are HIV
positive.
vii. Children vulnerable to HIV in high- risk communities.

The Hon'ble Supreme Court rules that children living with HIV should not be
discriminated In a public interest litigation brought by Naz (Organization) India in
2015, India's Supreme Court held that children living with or affected by HIV (that
is, children who are HIV positive and children who are HIV negative but whose
parents are HIV positive) should be afforded protected status and included as a
child belonging to a disadvantaged group' under India's Right of Children to Free
and Compulsory Education (RTE) Act (2009). The extension of protected status to
children living with or affected by HIV means that they are now entitled to special
protections and measures, under the terms of the Right to Education Act.

The Evidence Of HIV And Child Protection Linkages

There is ample evidence of increased vulnerability of HIV-affected children to child
protection violations:

Children affected by HIV:

a. Children orphaned by or living with HIV-positive sick caregivers face an

increased risk of physical and emotional abuse compared to other
children.
b. Caregivers of AIDS-orphaned children have higher rates of depression
than other caregivers this leads to increased mental health and
behavioral problems in children.
c. HIV-affected children experience greater stigma, bullying and emotional
abuse than their peers.
d. Children who are orphaned or are caregivers to an AIDS-sick person have
higher rates of transactional sex or increased (unsafe) sexual activity
and/or sexual abuse.
e. Children orphaned by HIV are twice as likely as non-orphans to have HIV.

Children who experience protection violations:

a. There is a direct link between childhood sexual, emotional and physical

abuse and HIV infection in later life for both women and men in high-HIV
prevalence areas.
b. Childhood sexual abuse is linked to higher rates of sexual exploitation
and other HIV risks, such as earlier initiation into injecting drug use, sex
 work and living on the streets, across all regions.

Positive experiences in promoting resilience:

a. Interventions that focus on building up individual, family and community

resilience and supporting existing protective factors show that it is
possible to stop the vicious cycle of escalating risk and harm.
b. Adults living with HIV face unique challenges in providing a protective and
caring environment for their children, especially where services are
limited.
c. HIV stigma hampers the ability of interventions that support parents and
caregivers to have positive effects on the whole family.
d. Children living in extended family care and children without family care,
largely due to HIV, are not receiving the protection they need.
e. A review of various studies found that orphaned children consistently
experienced discrimination within the home, material and educational
neglect, excessive child labour, exploitation by family members and
psychological, sexual and physical abuse.
f. Psychosocial support for children living with HIV improves HIV treatment
outcomes.
g. Physical and sexual abuse in childhood is high and significantly increases
the risk of HIV in adulthood for both men and women.

HIV/AIDS does not discriminate on the basis of age, skin, colour, caste, class, religion,
geographical location, and moral turpitude, good or bad deeds. Any human can become
infected with HIV i.e. human immunodeficiency virus that causes AIDS is transmitted through
contact with an HIV positive person's infected body fluids, such as semen, pre-ejaculate fluid,
vaginal fluids, blood, or breast milk.

HIV can also be transmitted through needles contaminated with HIV-infected blood, including
needles used for injecting drugs, tattooing or body piercing.