Legal Matters

Legal Matters

THE RIGHTS OF THE MENTALLY ILL

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The January, February and March issues of MAGNET discussed mental health and mental illness in series of articles. In this article, we present the rights of mentally ill persons. Like every other citizen, they have certain legal rights, which we will do well to know, especially if we are caring for a mentally ill relative or community member or if our institution looks after persons will mental illness. Further, as other articles in this magazine have highlighted, any of us can be affected by mental illness, just as we can fall physically ill. No one is assured a life without ailments.. –Editor

 

Here are the basic legal rights of mental ill persons.

  1. Right to make an “Advance Directive” (AD)

By law, every medical officer is bound to provide persons with mental illness adequate treatment in line with what is called “Advance Directive” (AD).

Every person who is not a minor has the right to make an AD in writing, stating  the way s/he wants or does not want to be treated in case of mental illness. In the case of minors, their legal guardian can make this statement.

It shall be made in the manner specified by regulations by the Central Authority, and it may be revoked, amended or cancelled by the person who made it at any time.  The AD shall not apply to the emergency treatment given under section 103 of the Act to a person who made the AD.

Medical Practitioners or Mental Health Professionals shall not be held liable for any unforeseen consequences on following a valid AD.  They shall also not be held liable for not following a valid AD, if they had not been given a copy of the valid AD.

  1. Right to Nominate a Representative

Every person who is not a minor shall have the right to appoint a nominated representative in writing.  Where no nominated representative is appointed, the legal guardian shall be their nominated representative unless the concerned Board orders otherwise. The nominated representative shall consider the current and past wishes, the life history, values, cultural background and the best interests of the person with mental illness.

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Fr Ravi Sagar SJ

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Legal Matters

LAWS ON MENTAL HEALTH CARE

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A year ago (March 2020), India Today magazine reported a 20% increase in patients with mental illness after the coronavirus outbreak in the country. The World Health Organization (WHO) emphasized that determinants of mental health and mental disorders include not only individual attributes, such as, the ability to manage one’s thoughts, emotions, behaviours and interactions with others, but also social, cultural, economic, political, and environmental factors, such as, national policies, social protection, living standards, working conditions, and community social supports.

Mental Health Issues in India
A holistic approach and comprehensive strategies are required for intervention, promotion, prevention, and treatment of mental health issues in India. National Mental Health Policies must be in place which not only promote treatment of mental health disorders but provide overarching directions on broader issues for ensuring mental health promotion. The WHO estimates that the burden of mental health problems in India is to the tune of 2,443 DALYs (“Disability-Adjusted Life Years”) per 1,00,000 population, and the age-adjusted suicide rate per 1,00,000 population is 21.1. It is also estimated that the economic loss due to mental health conditions between 2012-2030, is 1.03 trillion US dollars. The number of mental health workers in India show the inadequacy: For every 100,000 persons, we have only 0.3 psychiatrists, 0.12 nurses, 0.07 psychologists and 0.07 social workers.


Fr Ravi Sagar SJ

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Legal Matters

OFFENCES, COMPLAINTS & PUNISHMENTS

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Going through the Disaster Management Act 2005 (DMA – 2005), we have seen the authorities and funds created under the law.  Now we focus our attention on the offences and penalties under the Act and other matters related to it.

Offences Under the Law:

Sections 51 to 58 of the Act lay down what constitutes an offence in terms of obstruction of functions under the Act, false claim for relief, misappropriation of relief materials or funds, issuance of false warning, failure of an officer to perform the duty imposed on him under the Act without due permission or lawful excuse or his connivance at contravention of the provisions of the Act.  The clauses also provide for penalties for these offences.

Obstruction & Disobedience:

A person who obstructs any officer or employee in the discharge of his functions under this Act or refuses to comply with any direction given by or on behalf of him under this Act commits an offence.  On conviction, such person shall be punishable with imprisonment for a term up to one year or with fine, or with both.  If such obstruction or refusal to comply with directions results in loss of lives or imminent danger thereof, the convicted person shall be punishable with imprisonment  up to two years.


Fr Ravi Sagar SJ

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Legal Matters

Disaster Management Agencies

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(continued from the December issue)

The District Disaster Management Authority (DDMA)

Every State Government shall by notification establish a District Disaster Management Authority (DDMA) consisting of a Chairperson (Collector or District Magistrate or Deputy Commissioner) and other members (not exceeding seven) including elected representative, the Superintendent of Police, the District Chief Medical Officer and persons appointed by the State Government.  The Chief Executive Member of the District Autonomous Council shall be the co-chairperson of DDMA.  In any district where a Zila Parishad exists, the Chairperson shall be the Co-Chairperson of DDMA.  The Chairperson shall preside over the meetings and shall also exercise and discharge powers and functions as the DDMA may delegate to him.  The Chairperson has the power to exercise all or any of the powers in the case of an emergency.  An officer of the rank of Additional Collector or Additional District Magistrate or Deputy Commissioner is to be appointed as the Chief Executive Officer of DDMA to exercise such powers and perform such functions as may be prescribed by the State Government and such other powers and functions as may be delegated to him by DDMA.

The DDMA or its Chairperson may, by general or special order, in writing, delegate such of its or his powers and functions to the Chief Executive Officer, subject to such conditions and limitations, if any, as it or he deems fit. DDMA shall meet as and when necessary and at such time and place as the Chairperson may think fit.

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Fr Ravi Sagar SJ

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Legal Matters

MAINTENANCE OF ESSENTIAL SERVICES

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Essential Services Maintenance Act (ESMA) of 1968 is a law with special reference to this lockdown period

Imposition of ESMA:

“The Covid-19 outbreak has breathed life into antiquated laws,” says The Economic Times of 21 March 2020.  In April 2020, the Uttar Pradesh Government decided to put on hold the increase of the Dearness Allowance (DA) for its sixteen lakh employees which was due from January 1, 2020.  The government decided not to pay DA instalments which will be due from July 1, 2020 and January 1, 2021.  Further, it imposed ‘The Essential Services Maintenance Act, 1968’ (ESMA) and prohibited strikes in workplace for the next six months.  Similarly, the Andhra Pradesh Government imposed ESMA on health and medical services for a period of six months from April 2020.  The Madhya Pradesh Government invoked it on 3 April 2020 across the state as a measure to prevent any strike by essential services delivery system, including the medical and health services.  Therefore, it is high time we learnt the provisions of ESMA, especially during this pandemic period.

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Fr Ravi Sagar SJ

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Legal Matters

LAW ABOUT ESSENTIAL COMMODITIES

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The onslaught of Covid-19 pandemic triggered a panic buying of facemasks and hand-sanitisers.  The media focussed on the shortage of these commodities; a sudden, sharp spike in their prices and alleged hoarding of stocks by manufacturers and traders.  Hence, the Government of India brought face masks and hand-sanitizers under the Essential Commodities Act, 1955 (TECA-1955) and declared them essential commodities with effect from 13 March 2020 till 30 June 2020 to boost their supply and prevent hoarding.  On 08 July 2020, the Consumer Affairs Ministry said that they are no longer essential commodities as their supply is sufficient in the country.  This article explains the meaning and implications of this Act.

Origin of the Law:

During the first decade of its independence, India was facing a scarcity of food-grains.  The matter further worsened because of hoarding and black marketing.  The country had to import food to feed its population.  Hence, TECA-1955 was legislated in order to regulate the production, supply and distribution of essential commodities.  As per the provisions of this law, the Central Government (CG) declares certain commodities ‘essential’ in order to make them available to the general public at fair prices.

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Ravi Sagar

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Legal Matters

CONSUMER LAWS IN A NUTSHELL

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In the past issues, I have attempted to bring home the essential provisions of the Consumer Protection Act – 2019 (CPA-2019). In this issue, I sum up all that has been discussed so far on consumer laws. CPA-2019 was enacted to protect the rights of consumers in the modern consumeristic-competitive-market. A speedy and simple redressal mechanism, in addition to a convenient and inexpensive procedure for the redressal of their grievances, is the main feature of CPA-2019. Competent authorities, namely, Commissions and Councils, have already been established for timely and effective administration and settlement of consumers’ disputes providing effective safeguards to consumers against various types of exploitation and unfair trade practices. CPA-2019 recognizes certain basic rights of consumers and enumerates them in section 2(9).

Consumers’ Rights

  1. A consumer has a Right to Safety from marketing of goods and services hazardous to life and property. Unsafe goods and services may cause death or serious injury to the user. Therefore, the manufacturers and traders must ensure that the goods and services are safe for the users.

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Fr Ravi Sagar SJ

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Legal Matters

COMMISSIONS AT DIFFERENT LEVELS

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The Consumer Protection Act, 2019 (CPA-2019) was enacted to provide for protection of the interests of consumers, and to set up appropriate authorities for speedy and effective settlement of consumer disputes.  These authorities are consumer dispute redressal commissions, mediation cells, consumer protection councils and a central authority.  CPA-2019 continues the 3-tier quasi-judicial mechanism for the speedy redressal of consumer disputes and their grievances. They are the District Commission, the State Commission and the National Commission.

  1. District Redressal Commission:
    A District Consumer Disputes Commission, usually at the district headquarters, is established by the state government, consisting of a president and at least two members regarding goods or services valued up to rupees one crore.  In order to make a complaint to the District Commission, either the complainant must reside or personally work within its local jurisdiction or the cause of action must arise, or the opposite party must live within the territorial jurisdiction of the Commission.

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Fr Ravi Sagar SJ

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Legal Matters

CONSUMER PROTECTION

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When can a consumer complain? Here are the instances and circumstances.

The Consumer Protection Act 2019 (CPA-2019) was enacted in order to protect the rights and interests of consumers and to settle their consumer-related disputes.  A consumer or the complainant may complain in writing for obtaining appropriate relief under CPA-2019.  The following are the circumstances in which a complaint can be made.

  1. Defects in Goods:
    When goods or products are sold or supplied, they are required to be of a standard under any law or under contract made or claimed by the trader.  A complaint for obtaining relief may be made under CPA-2019 when the goods or products bought or agreed to be bought suffer from one or more defects.  ‘Defect in goods’ means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard of goods sold or supplied.  To give an example: “A” supplied white marble to “B.”  Later, the colour of the marble changed.  “B” sued “A,” alleging supply of defective marble.  It was held that “A” should have expressly told “B” that the marble would not retain its colour when polished.  In the absence of such assertion, it is deemed that “A” made “B” to understand that the marble would retain its white colour and, when the colour changed, it comes within the scope of ‘defect’ in goods’ under CPA-2019.

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Fr Ravi Sagar SJ

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Legal Matters

CONSUMERS, KNOW YOUR RIGHTS….

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Gone are the days of “Caveat Emptor,” where the consumer was asked to “Beware.”  It was the principle that the buyer alone is responsible for checking the quality and suitability of goods prior to the purchase.  These are the days of “Caveat Venditor,” which means, “Let the seller beware,” for the sellers are accountable for providing information about the goods and services they sell.

The Consumer Protection Act, 2019 (CPA-2019)

CPA-2019 has replaced the three-decades-old Consumer Protection Act, 1986.  The Bill was introduced in the Lok-Sabha on 8 July 2019 and passed on 13 July 2019. It was passed on 6 August 2019 by the Rajya-Sabha, received the assent of the President on 9 August 2019, and was notified in the Gazette of India on the same date.  The Act was expected to come into effect by November 2019 when the Union Government framed rules within three months in order to implement CPA-2019.

The purpose of CPA-2019

The purpose of CPA-2019 is to protect the rights and interests of the consumers and to provide for speedy, effective and simple redressal mechanisms in addition to convenient and inexpensive procedures for redressal of their grievances.  Competent authorities already have been established for timely and effective administration and settlement of consumers’ disputes providing effective safeguards to consumers against various types of exploitations and unfair trade practices.  Consumer Courts enforce the rights of consumers.

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Fr Ravi Sagar SJ

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