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Right to safety

July 22, 2022

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This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article discusses the concept of the right to safety in context of not only consumer rights and hazardous waste but also a range of aspects affected by its non-implementation.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

One of the many issues caused by urbanisation in emerging nations is increased exposure to environmental risks. In places vulnerable to natural disasters, effective risk reduction has a long history. However, attempts to lower risk have been outpaced by the size of urban vulnerability and the rate of its rise. Other significant barriers include complex socioeconomic and institutional environments. Scaling up is a particularly difficult task since, up until now, most urban risk reduction projects have been small-scale, one-time events that frequently concentrated on a single risk factor or hazard. To encourage broad-based, multidisciplinary catastrophe risk reduction and to integrate mitigation into development planning, new strategies are required. In both urban and rural contexts, mainstreaming could be facilitated by the idea of a ‘right to safety’. The concept has been addressed in broad strokes. However, there are issues with its practical implementation. It has not advanced much outside of academic circles as a result of this.

Another viewpoint in relation to the concept of ‘right to safety’ is in relation to consumer rights. Only when there is a link between those who consume a product or service and those who offer it, can there be a ‘right to safety’. Each nation’s Constitution guarantees that its citizens have a right to life and establishes the relationship between the state and its people. This right to life translates into the right to a life free from crippling harm. Similar to this, when a private company offers products or services, the customer expects there won’t be any negative effects from doing so. This article discusses the broad right to safety from different angles, thereby specifically highlighting its perception in India as well as in the international domain. As this topic is highly restricted only to consumer protection largely, this article aims to help readers get a divergent view about the not much discussed right to safety.

What is the right to safety

The right to safety can be defined, quite simply, as follows, “everyone has the right to the highest attainable standard of protection against natural and man-made hazards.” Other economic, social, and cultural rights recognised in international human rights accords lend weight to this notion. Like other rights, the right to safety carries responsibilities to be fulfilled, largely on the part of governments but also on the part of other parties.

Although the internet and web surfing make it obvious that the context of the right to safety is solely associated with consumers’ rights, it is necessary to understand first the requirement that this right holds amidst a list of recognised rights. ‘Safety’ signifies ‘protection’ or ‘safeguard’, hence the right to safety signifies the right to be protected. Now, why do we need a right to protect ourselves when we already have many recognized fundamental rights enshrined in the different constitutions across a variety of nations, seeking to protect our freedom?

The answer is simple in this regard. We, as individuals, require the right to safety so as to be standing on a concrete base of self-preservation so as to exercise the other guaranteed and enforceable rights. The reference to consumers’ interests is made when talking about the right to safety because a consumer has a right to be protected against the marketing of products and services that endanger life and property. The goods and services obtained should not only satisfy their short-term demands but also their long-term objectives. Customers should demand both the product quality and the warranty of the goods and services before making a purchase. They should preferably buy high-quality products with labels like ISI or AGMARK.

But the subject matter of the right to safety is divergent enough to include the right to be protected from bodily harm, hazardous goods, data privacy infringement, criminals intending to inflict harm, etc. Although not an expressly mentioned right, the right to safety has been welcomed within its ambit by several rights in recent times. The article has therefore sought to incorporate every known aspect of this right.

Need for right to safety

The need for a right to safety has been encapsulated in the points provided hereunder:

In a culture where people feel the need for a standard on which to base an actionable claim for protection against physical, social, or emotional harm, the need for creating a right to safety emerges. Additionally, when societal agreement and action are established, this demand is strengthened. People used things, lived in houses, and were surrounded by an environment that they helped create, either individually or as a community, in the past, and they took responsibility for any harm or injury that resulted from those arrangements. However, contemporary structures do not let us live autonomously or in isolation from others.
Regular activities frequently hinder making personal decisions. For instance, the majority of us are unable to pick the time or route we take to get to work. Most of us utilize technologies that were created by large, often unaccountable corporations and live in homes that were designed and constructed by others. We also dare not speculate on the dangers present in the chemicals and other goods we buy. Because of this new stage in human history, we must create a new set of rights to shield us against unjustified harm.
Without a societal and political understanding of the ethical and moral responsibilities of the state and civil society to ensure that all individuals have a right to life in accordance with currently available knowledge and technology, systems that ensure a life safe from injury cannot be put in place. This need for a right is underscored by research that has shown that “educating” people to ensure their safety has serious limitations and that there is a large gap between knowledge and behaviour.
This is especially true in circumstances where we are unable to choose the individuals who will participate in specific activities, such as while performing household tasks, using public transportation, or in the majority of our workplaces. The population, under certain circumstances, may also comprise people who are preoccupied with any of the following on any given day:

Those who are unable to focus on the task at hand because they have just experienced a personal loss or disappointment, such as the death of a loved one, the loss of a job, failing an important exam, suffering financial loss, etc.
Those who are preoccupied with issues in close friendships, family ties, or marriages.
People who are drinking alcohol or using drugs or pharmaceuticals that affect behaviour or perception, as well as those who are both.
Children whose cognitive and motor abilities make it challenging for them to comprehend or adhere to instructions.
Elderly adults with compromised movement and cognitive abilities.
People with psychological disorders may not be able to perform as intended but cannot be prohibited from engaging in a certain activity.

Consequently, we have a civic and moral obligation to create our laws, environments, and goods with people in mind who can act safely and easily without having to give up their ability to earn a living and pursue their goals and other societal responsibilities. Systems need to be made with caution, not just for ‘regular’ individuals, but also for those who belong to any of the above-mentioned groupings. Such patterns, laws, and regulations would make it less likely for people to harm one another or themselves, even when someone makes a mistake. Only until safety is acknowledged as a fundamental human right will such improvements be implemented in a systematic manner. communities and is not just reliant on the willingness of strong organisations.

Safety as a human right

The Sixth World Conference on Injury Prevention and Control took place in Montreal, Canada, in May 2002. The completion of a draft charter on the people’s right to safety, which had earlier been endorsed by attendees at the 5th World Meeting in New Delhi, was one of the outcomes of the conference. The South Asia Forum for Human Rights and the Transportation Research and Injury Prevention Program of the Indian Institute of Technology, Delhi jointly organised the workshop, which took place in March 2000 in Delhi, India, in conjunction with the 5th World Conference on Injury Prevention and Control. Following talks at the workshop, the Delhi Declaration on the People’s Right to Safety was accepted by all conference attendees on March 8, 2000.
This first proclamation supports the idea that safety is a fundamental human right and is a crucial tool for accident prevention and safety promotion. It describes additional actions that must be completed to create a charter on a person’s right to safety.
In numerous areas, including the rights of children, women, and workers, as well as the rights of people in development generally, governments have been held legally responsible under international human rights law. International human rights documents like the International Covenant on Economic, Social, and Cultural Rights, the Convention on the Rights of the Child, the Declaration on the Elimination of Violence Against Women, and the Employment Policy Convention have expanded and enhanced these rights.
Individuals, civil society organisations, and citizen organisations can demand safer goods, safer working and living circumstances, and a safer environment to live in by adopting these agreements, declarations, and charters. Governments and courts in numerous nations have put in place safety standards, laws, and enforcement procedures in response. The strategies used to combat infectious and contagious diseases, as well as hunger, are not the same as those used to make life safer.

Contrary to policies based on a notion of rights, the majority of initiatives to promote safer products are corrective actions. Although it may seem that the right to life already includes the right to a life that is free from crippling injuries, decision-makers and the general public have not yet used this right to influence policy in this area. As a result, it is now crucial to advocate for the fundamental human right of everyone to live in a world free from dangerous injuries.

Finally, the various UN human rights agreements ratified by various nations help to clarify the pertinent global obligations. These underlying accords are only made apparent in the Montreal Declaration. This can assist people in realising that a right to safety is just as legitimate as a right to clean air or a right to live in a world free of smallpox. The Montreal Declaration should be acknowledged as a beginning point for establishing a people’s right to safety as a fundamental right supported by individual governments and by the UN in order for injury control to be regarded seriously as an international public health concern.

United Nations guidelines on safety

In addition to providing governments with practical support and guidance for developing national consumer protection measures like legal systems, safety regulations, national or international standards, voluntary standards, and the maintenance of safety records to ensure that products are safe in use, the UN guidelines provided the principles of consumer rights with necessary legitimacy. The Guidelines said that because they are in charge of delivering products to the market, suppliers, exporters, importers, retailers, and others would ensure that the commodities in their custody were not made dangerous by inappropriate handling or storage. Additionally, the consumer should receive training on how to use products properly and be made aware of any potential risks. If manufacturers or distributors learn of unforeseen risks after products are put on the market, appropriate policies should ensure that they immediately notify the public and the appropriate authorities.

Governments ought to think about how to make sure that people are appropriately educated about these risks. When possible, customers should be given access to critical safety information through symbols that are universally recognised. The government should establish regulations that require makers and distributors to replace, modify, or substitute another product in the event that a product is proven to be substantially flawed and/or to pose a significant and serious risk, even when used appropriately. The customer should receive fair compensation if it is not possible to comply with their request within a reasonable amount of time.

Safety standards laid down by the United Nations

The United Nations Guidelines for Consumer Protection (UNGCP) emphasised the value of standards for the security and caliber of consumer goods in its guidelines in 1999. It is important to periodically examine national standards and laws governing product safety and quality, to make sure they are, to the greatest extent feasible, in compliance with established international norms. Safety standards are designed to specify protection against a variety of risks, including mechanical, electrical, thermal, fire or explosion, chemical, biological, and radiological risks.

Who is responsible for enforcing the right to safety

The question as to who is ultimately in charge of guaranteeing public safety and reducing risks (whether they are man-made or natural) has no easy solution. People expect the government, for example, to issue and enforce standards and laws to ensure the safety of their houses and the structures in which they work. However, society as a whole also places a large portion of the responsibility on builders, architects, and the general public.

The State

International human rights treaties are aimed towards the State, which should uphold these rights. States voluntarily agree to such agreements and make a commitment to uphold their obligations. This duty is sufficiently obvious when it comes to political and civil rights.
Every country that ratified the International Covenant on Civil and Political Rights “undertakes to respect and to ensure to all individuals residing in its territory and subject to its jurisdiction the rights recognised in the present Covenant, without difference of any kinship”.
Although the concept of gradual realisation has drawn criticism for being too nebulous, absolving states of responsibility and transforming rights into aspirations, it may equally be argued that it simply reflects the fact that such rights cannot be realised quickly.
The “full realisation of the rights” is a goal that governments are dedicated to pursuing, and they are expected to do it as soon as feasible.

The non-state actors

Non-state actors’ positions are debatable and complicated. Individuals, families, communities, civil society organisations, and the private sector are all said to have obligations to ensure that rights are upheld or realised.
However, because they are not parties to the international system of legal ratification of rights, they cannot be held accountable on an international scale in the same way that states can. None of these organisations are required by law to assist developing nations in upholding their legal duties or to provide certain levels of care in times of need.
Self-regulation is favoured in reality, particularly among NGOs. For example, agencies working in humanitarian relief in the 1990s launched their own programmes to promote accountability and improve standards, namely, the Red Cross Code of Conduct, the Sphere Project, and the ombudsman projects.
The concept of a right to safety is likely to be challenged by those who fear it will increase their own liability (e.g. government and the private sector).

Attaching a global perspective to the right to safety

Some international human rights treaties do not specifically mention the right to safety, but some do, either tacitly or explicitly. Certain aspects are covered by the three major instruments of human rights; the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (CCPR), and the International Covenant on Economic, Social and Cultural Rights (CESCR). These aspects can be grouped into six main kinds:

Right to security in general

The supreme right and the cornerstone of all other human rights is the right to life. Some codes start off with a general declaration of the right to life, liberty, and personal security. These are meant to protect the rule of law from outsiders invading one’s privacy and security. Although it could be claimed that they do so in some circumstances, such as when human negligence or malice permits dangers to cause death or harm, they do not really suggest a right to protection against a wider variety of hazards.

Right to economic, social, and cultural development

This is the right to have a say in one’s own decisions in the areas of commerce, society, and culture (as well as to self-determination and freedom of political choice). Individual liberties in these domains may be restricted by external shocks like risks. Therefore, it is possible to claim that failing to provide enough protection against risks is equivalent to failing to defend rights, but this is a weak argument.

Right to an adequate standard of living (including the right to housing)

A number of its components are listed in human rights agreements, including access to enough food, clothing, shelter, healthcare, social services, and social security. Housing is one of these elements that is very important for safety. Some human rights documents include the idea of “adequate” housing. Additionally, the occupants’ physical safety must be ensured. Although this is sufficiently explicit, the interpretation does not now have the same authority as an express statement in a global human rights document.

Freedom from hunger

Another element of the right to an adequate standard of living is access to sufficient food. The Covenant on Economic, Social, and Cultural Rights, 1966, was a turning point in commitment because it affirmed everyone’s right to be free from hunger and laid out concrete steps to increase food production and distribution in order to realise this right.

Right to health and safety at work

As employers are obviously accountable, both morally and legally, for ensuring it, safety in the workplace is typically viewed as a right and, moreover as a right that can be enforced.

Right to health

The Covenant on Economic, Social, and Cultural Rights’ commitment to the highest practicable standard of physical and mental health lends a strong endorsement to the right to safety. Evidently, hazards are a significant contributor to illness and mortality. States must take action to reduce illness risk and enhance workplace and environmental hygiene. It is merely a small step from there to the requirement for measures to deal with dangers. The interpretation of the right to health is that it is “an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition, and housing, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive health.” It is important to place attention on the fundamental factors affecting health since they are directly related to the concept of a right to safety.

Hereunder, two developed nations of this progressive world, namely, the United States and the United Kingdom, have been placed through the lenses of the right to safety so as to understand how structurally they identify this right and how India, being a developing nation, can adapt to the pros of the systems governing the right to safety in the developed nations.

Attaining right to safety : possibilities and realities

Absolute security is not possible. Safety is also hard to define because people’s perceptions of what constitutes acceptable risk and security levels vary and are frequently subjective. In situations when the actual nature, magnitude, and extent of danger are uncertain or contested, decisions about risk and safety may need to be made. The concepts of “adequacy” and “highest attainable standard” are two potential solutions to these issues.

Adequate safety

As we have seen, most people agree that everyone has the right to “adequate” food and housing. Can this be defined in a meaningful way, that is, one that establishes certain fundamental norms while taking into account the range of needs and expectations among people? This is conceivable, and the history of the right to food offers a plausible parallel for how the right to safety might be interpreted. The specific definition of “adequacy” is greatly influenced by the social, economic, cultural, climatic, ecological, and other variables that are in place. However, there is a “core content” to the right to adequate food, which denotes “the accessibility of such food in ways that are sustainable and that do not interfere with the enjoyment of other human rights” and “the availability of such food in ways that are free from adverse substances and that are acceptable within a given culture.”

Highest attainable standard of safety

The concept of the “highest attainable standard” is also put forth by the Committee on Economic, Social, and Cultural Rights. Everyone has the right to the highest standard of physical and mental health that is reasonably attainable, according to the General Comment on the Right to Health published in 2000. As a result, states are required to take the necessary steps for, among other things, “the prevention, treatment, and control of epidemic, endemic, occupational, and other diseases.” It’s important to note that the General Comment acknowledges that perfect health cannot be promised.

A complete state of physical, mental, and social well-being is not what is meant by “health.” The right to health must be interpreted as “a right to the enjoyment of a variety of facilities, goods, services, and situations necessary for the fulfilment of the greatest possible quality of health,” rather than as “a right to be healthy.” A person’s biological and socioeconomic preconditions (such as hereditary characteristics, individual vulnerability to illness, and the choice of unhealthy or risky lifestyles), as well as the state’s resources, must be taken into account when considering the maximum attainable quality of health.

Right to safety in the United States of America

The consumer movement emerged in the United States at the beginning of the 19th century, and the Donald C. MacPherson case added significantly to this development by raising consumer consciousness. The New York Court of Appeals noted in this decision that a car manufacturer was required to make up for damages suffered by a consumer when one of the automobile’s wheels collapsed due to a defect. Additionally, the maker was found to have been negligent by the court because a reasonable inspection may have found the problem. The Consumer Product Safety Act was passed in 1972.

Right to safety under the Occupational Safety and Health Act, 1970 (OSHA)

To stop workers from getting killed or suffering other types of harm at work, the Occupational Safety and Health Act of 1970 (OSH Act) was passed. According to the legislation, companies are required to give their workers safe working environments. The Occupational Safety and Health Administration (OSHA), which establishes and upholds protective workplace safety and health regulations, was established by the OSH Act. Additionally, OSHA offers guidance, instruction, and support to both businesses and employees.
Workers have a right to safe and healthy working conditions under the OSH Act. Employers have a responsibility to offer safe workplaces free of known hazards that could harm their workers. Additionally, this law grants significant rights to employees to take part in initiatives that guarantee their protection from dangers in the workplace.
A safe workplace must be provided by the employer. Employers MUST obey all OSHA safety and health regulations and provide their workers with a workplace free from major hazards. Safety and health issues must be identified and fixed by employers. In addition, OSHA mandates that employers try to eliminate or reduce risks before using personal protective equipment, such as masks, gloves, or earplugs. Examples of effective changes in working conditions include switching to safer chemicals, enclosing processes to trap dangerous fumes, or using ventilation systems to purify the air.
OSHA extends to the following categories of people:

Private sector workers: The majority of workers in the country fall within OSHA’s purview. Through Federal OSHA or an OSHA-approved state plan, OSHA covers the majority of private sector companies and employees in all 50 states, the District of Columbia, and other U.S. jurisdictions. The federal OSHA programme must be at least as effective as state-run health and safety programmes.
State and local government workers: State and local government employees are not covered by federal OSHA, but if they work in a state that has an OSHA-approved state plan, they are still protected under the OSH Act.
Federal Government Workers: Federal organisations are required to follow the same safety and health regulations as for-profit businesses. OSHA monitors federal agencies and addresses worker complaints, even though it does not impose fines on them. OSHA regulates the United States Postal Service (USPS).

OSHA does not extend to those who are self-employed, immediate family members of farm employers and those whose workplace hazards are regulated by another federal agency (for example, the Mine Safety and Health Administration, the Department of Energy, or the Coast Guard).
When it is impossible to entirely eliminate a risk or lower exposures to a safe level, personal protection equipment such as respirators, goggles, earplugs, gloves, and other items are frequently employed on their own or in conjunction with other risk-reduction techniques. Most protective equipment must be free of charge from employers. Employers are accountable for understanding when protective equipment is needed.
Many OSHA regulations call for businesses to test their workplaces to see if their employees are being exposed to dangerous quantities of hazardous materials like lead or asbestos, as well as high levels of noise or radiation. Exams of this nature are referred to as exposure monitoring. OSHA gives workers the right to get the results of these tests.
Employers in higher-hazard industries with more than ten employees are required to maintain accurate and comprehensive records of work-related injuries and illnesses under OSHA’s Recordkeeping Rule. (Such records are not needed to be maintained in some low-hazard workplaces, such as offices.) Any severe work-related illness or injury must be reported by the employer on OSHA Form 300. Serious injuries or illnesses necessitated medical attention beyond first aid, restricted employment, or time off from the workplace.
It is always advisable for employees to alert their employer, if at all possible, if they think the working environment is harmful or unhealthy. A hazardous working condition is something they can report to OSHA at any time. They shouldn’t, however, quit the job site just because they have complained. They may have the legal right to refuse to work in a position where they would be exposed to a hazard if the condition plainly poses a risk of death or significant physical harm, there is not enough time for OSHA to inspect, and, if at all practicable, they have informed their employer of the condition.
Examples of OSHA standards include requirements to:

Offer fall protection by way of a safety belt and lifeline.
Prevent cave-ins in trenches.
Ensure the security of personnel entering limited areas like grain bins or manholes.
Prevent being exposed to loud noises that can harm hearing.
Install guards on equipment.
Prevent exposure to dangerous concentrations of chemicals like lead and asbestos.
Make respirators and other necessary safety equipment available to employees (nearly always free of charge).
To avoid skin punctures or cuts that could expose healthcare personnel to contagious diseases, give them sharp objects with safety features like needles.
Train employees about risks and self-defence techniques using language and vocabulary they can understand.

The role of the Consumer Product Safety Commission (CPSC)

The Consumer Product Safety Act, passed by Congress in 1972, established the U.S. Consumer Product Safety Commission (CPSC), an independent federal regulatory organisation. The primary responsibility of the CPSC is to protect the public from unreasonable risks of injury that could occur during the use of consumer products. They have authority over a vast array of consumer goods, including coffee makers, toys, and lawn mowers. However, other federal authorities are in charge of other product categories. For instance, the Food and Drug Administration is in charge of food, drugs, and cosmetics, the Department of the Treasury is in charge of alcohol, tobacco, and weapons; and the Department of Transportation is in charge of automobiles, trucks, and motorbikes.
CPSC works to reduce the risk of injuries and deaths from consumer products by:

Collaborating with businesses to create voluntary standards.
Establishing and enforcing requirements, thereby prohibiting consumer goods if none exist would effectively protect the public.
Collecting product recalls and arranging for their replacement, repair, or refund.
Investigating potential product dangers.
Educating and enlightening customers through the media, local, state, and private groups, as well as through responding to their questions.

Even though it is a separate federal regulatory body, the CPSC does not have authority over all consumer goods. Nevertheless, the CPSC oversees almost 15,000 different categories of consumer goods.
For instance, in 2004, it had an average response time of under 6 days. In contrast, the agency’s typical response time in the late 1980s was close to 50 days. The CPSC also introduced fresh programmes in 2004 to handle the rapid growth of e-commerce. The most well-known of these initiatives is Operation SOS (Safe Online Shopping), in which agency representatives look into consumer goods that are offered for sale illegally or in a dangerous manner online. To help small businesses comply with product safety regulations more easily, the CPSC appointed a Small Business Ombudsman in 2004. This individual serves as their single point of contact for information and support.
Rarely, when the manufacturer or distributor is unable or unwilling to act decisively to fix defective products, the agency orders a required recall. Recalls for products like bicycles, infant strollers, propane tanks, and electric chargers were announced in 2018.
SaferProducts.gov, a public database, contains details on thousands of items’ recalls. A representative for the organisation says, “consumers, child service providers, medical experts, government officials, and public safety organisations can all file reports of injury (Reports) concerning consumer products through SaferProducts.gov. The reports will be distributed to manufacturers (including importers) and private labels listed in the reports, and they will be given the chance to comment on them. Anyone can search completed Reports and manufacturer comments online at www.SaferProducts.gov.”
The Pool Safely national public education campaign from the CPSC collaborates with organisations around the nation to prevent child drownings and entrapments in swimming pools and spas. Additionally, the organisation runs an ATV Safety Info Centre that advises users to keep all ATVs off of paved public roadways. According to the agency spokeswoman, there are about 650 fatalities and 100,000 injuries annually involving ATVs.
Five commissioners make up the Consumer Product Safety Commission (CPSC), each of whom was chosen by the President of the United States with the approval of Congress. The head of the Commission is chosen from among them. With regional offices in Chicago, New York, and San Francisco as well as field offices in several cities across the nation, the CPSC has its main office in Bethesda, Maryland. The CPSC also maintains a toll-free Consumer Product Safety Hotline (1-800-638-CPSC).

Right to safety in the United Kingdom

The Health and Safety at Work etc. Act 1974 serves as the cornerstone of British health and safety law. The Act outlines the general obligations that both employers and employees have to abide by in maintaining relationships with one another as well as with that of the general public and other employees. According to the Act, these obligations are only required “to the extent that is reasonably practicable.” In other words, an employer is not required to take precautions to eliminate or minimise risk if doing so would be technically impossible or if doing so would be prohibitively expensive, time-consuming, or difficult given the risk. Here, the law mandates employers to do what prudent management and common sense would already lead them to do, that is assess the risks and take appropriate action to address them.
What employers must undertake to manage health and safety under the Health and Safety at Work Act is generally more clearly stated in the Management of Health and Safety at Work Regulations 1999 (the Management Regulations). They apply to every aspect of work, just like the Act. A risk assessment is the key obligation for employers. Employers with five employees or more are required to document the key outcomes of the risk assessment. Risk evaluation should be simple in a straightforward environment, like a standard office. If it involves significant risks, such as those present in a nuclear power plant, chemical plant, laboratory, or oil rig, then it should only be complicated.
Many of the health and safety laws in Britain today have their roots in European legislation. Member States have the option of approving proposals from the European Commission, after which they are in charge of incorporating them into national legislation. The foundation of contemporary health and safety legislation in our nation, including most of what comes from Europe, is the concept of risk assessment.
Over the past twenty years, the Health and Safety Commission and its operating arm, the Executive (HSC/E), have modernised the framework of health and safety law. Their objectives are to safeguard others, primarily the public, who may be exposed to risks from work activity as well as to ensure the health, safety, and welfare of employees. HSC/E implements various strategies based on assessing and limiting risk after conducting thorough consultations with those who would be impacted by their legislative proposals.

Right to safety in India

As consumers, we are often concerned about our finances, choices, health, and personal safety. Sellers’ dominance over the market stems from their perception of consumers as a weaker group. Market research shows that in recent years, inaccurate or deceptive marketing, claims, bargaining, offering gifts, prizes, competitions, and hoardings to entice customers have all had an impact. The Indian government firmly believes that social justice and economic prosperity cannot be realised without a safe, clean environment and healthy working conditions, and that a safe, clean environment is also recognised as a fundamental human right. For the avoidance and promotion of such measures, education, training, consultation, and the exchange of information and good practices are crucial.

Right to safety under the Indian Constitution

The Supreme Court of India, with the assent of the President of India, created the Supreme Court (First Amendment) Rules, 1990, in order to carry out the powers granted to it by Article 145 of the Indian Constitution and all other powers empowering it in this regard. Today, internet marketing is extremely dominant, necessitating the appropriate application of the Consumer Protection Act, 1986, particularly in this field. Customers in today’s time are making a purchase after viewing a picture on a screen and placing their trust in the vendor’s claimed specifications.
The Indian Constitution gives specific guidelines for people’ rights and establishes the Directive Principles of State Policy, which provide a direction for the government’s actions. The government is committed to regulating all economic activities for the management of safety and health risks at workplaces and to providing measures so as to ensure safe and healthy working conditions for every working individual in the country. This commitment is based on these Directive Principles as well as international instruments. The government is aware that worker health and safety contribute to economic growth as well as productivity. Assuring a high quality of safety and health at work is as crucial to successful business operations for both emerging and established industries as is prevention.
Although right to safety has not been expressly talked about under any provision of the Indian Constitution, the divergent ambit of Article 21 of the Constitution does incorporate the right within itself.

Right to safety as a consumer right

Even though business people are conscious of their social obligations, we frequently see instances of consumer exploitation. As a result, the Indian Government grants the following rights to all consumers under the Consumer Protection Act, 1986, namely, the rights to safety, information, and choice, as well as the rights to be heard or to be represented, to seek redress, and to consumer education. It is crucial to organise, give market information, safeguard against deceptive advertising, maintain physical safety, and educating consumers about their fundamental rights in order to uphold the same.
In 1986, India’s Consumer Protection Act (CoPRA) was enacted. It is a kind of social legislation created to guard consumers from being taken advantage of by producers, dealers, and traders. The Consumer Protection Act of 1986 protects a number of consumer rights, including the right to safety under Section 6, which applies to a wide range of goods and services that, as a result of technical advancements, are readily available on the market and call for careful handling. Some of these products require technical expertise to utilise. It’s possible that many customers don’t know how to use the products safely. They might also lack the technical expertise needed to evaluate the safety features of goods and services. Therefore, from the perspective of the consumer, product safety is of the highest significance.
Consumers have the right to protection against the marketing of goods and services that endanger life and property, and this right is crucial for a safe and secure lifestyle. This right entails taking into account both the consumer’s immediate needs and long-term interests. Pressure cookers, gas cylinders, and other electrical appliance manufacturing flaws can occasionally put customers’ lives, health, and property at risk. The customer is shielded against the sale of such harmful goods or services by this right to safety.
While deciding on the case U.P. Power Corporation Ltd. & Ors v. Anis Ahmad (2013), the Supreme Court of India went into great detail to explain the definition of ‘complaint’ under Section 2(1)(c) and ‘consumer’ under Section 2(1)(d) of the Consumer Protection Act, 1986. Additionally, the Apex Court emphasised the rights of consumers towards safety and stated that in order to exercise the right, consumers can use due diligence and submit a complaint against the service provider who has harmed or caused injury to the former.
Therefore, a complaint for a grievance suffered because of unfair trade practices or restrictive trade practices, a defective good or service, a deficiency in services, hazardous goods or services, a price that is higher than the price set by any law, etc., can only be made with regard to the aforementioned aspects. Customers have a right to have their health and safety protected from the products and services they purchase. They shouldn’t be given products or services that could endanger their health or safety.

Consumer protection and promotion have become more important as a result of the global economy’s growing interconnectivity and the worldwide nature of many corporate operations. Consumers are now looking for more value for their hard-earned money in the shape of higher-quality products and better services. It is true that advances in modern technology have had a significant impact on the standard of living, accessibility, and security of goods and services. However, the truth of the situation is that manufacturers and retailers continue to use unfair and constructive business methods against their customers. With the stated goal of promoting international enforcement cooperation among member States and encouraging the sharing of consumer protection experiences. The Intergovernmental Group of Experts on Consumer Protection Law and Policy has been established to monitor the implementation of the guidelines, provide a forum for consultations, produce research and studies, provide technical assistance, conduct voluntary peer reviews, and periodically update the UNGCP.

There are numerous laws that protect our right to safety, which can be broadly divided into those that establish requirements for the quality of goods and services as well as those that are designed to protect our physical well-being. The main laws for each category are listed below:

The Food Safety and Standards Regulations 2011

The Food Safety and Standards Regulations of 2011 are overarching rules that establish standards for all possible food categories while safeguarding customers from tainted food. This law is really thorough. For instance, it specifies the precise amounts of milk fat and solids that should be present in cow and buffalo milk from each Indian state. It specifies the moisture content of even foods like toffees and soup powders and provides guidelines for the production of every type of oil as well as the maximum allowed amount of sodium chloride in pickled olives, among other things. On their website, the Food Standards and Safety Authority of India has published a regulation that is over 700 pages long and is extremely complex. There is a good probability that any food item you can think of will turn up in a word search. The difficulties in implementation have involved conducting regular checks to determine whether these requirements are being met.

Bureau of Indian Standards 1986

The Bureau of Indian Standards 1986 (BIS) is the other piece of legislation in this area. Not just food, manufacturers must voluntarily notify the bureau that their goods or services are prepared for certification and to receive the ISI (Indian Standards Institute) seal of quality. There have been allegations of ISI-marked products being of poor quality or of standards sliding after gaining the certification, and the voluntary nature of the law for most commodities leaves many people off the hook.

Standard Certification Marks

The Bureau of Indian Standards is essential in developing safety and quality standards. BIS regularly communicates with a variety of governmental and non-governmental organisations. Following conversations with various organisations, the Bureau promotes the standards and ISI marks by hosting seminars, taking part in seminars, and using print and electronic media. A standard or certification mark on the product serves as an assurance of its user’s safety. It guarantees the product’s safety against health risks and serves as proof that it has passed a series of rigorous testing.

Drugs and Cosmetics Act, 2008

The Drugs and Cosmetics Act of 2008 has a weak definition of cosmetics. It states that “a cosmetic shall be judged to be adulterated if it contains any dangerous or toxic substance which may render it harmful to health.” It is necessary to specify and update the list of hazardous substances. Western watchdogs’ tests have revealed that previously widely acceptable chemicals used in cosmetics are now dangerous. The poorly written and inadequately worded cosmetics section of the Act doesn’t even distinguish between coloured and non-colored cosmetics, a fundamental distinction in the sector. Hence, an Act filled with loopholes also jumps on the wagon when it comes to being legislation upholding the right to safety.

The National Consumer Disputes Redressal Commission

In order to encourage consumer awareness, the Consumer Protection Act of 1986 requires the establishment of Consumer Protection Councils at the Centre as well as state and district levels. In 1988, the National Consumer Disputes Redressal Commission (NCDRC), an Indian quasi-judicial body, was established. The National Consumer Disputes Redressal Commission has the jurisdiction to hear a complaint valued at more than one crore, and it also has appellate and revisional jurisdiction over decisions made by state commissions or the district forum, as the case may be. This is in accordance with Section 21 of the Act. According to Section 23 of the Consumer Protection Act of 1986, anyone who is dissatisfied with a decision made by the NCDRC has 30 days to file an appeal before the Supreme Court of India.

Right to physical safety

While there are many laws in this category, a few frequent ones have been listed hereunder:

Lifts Act

To ensure that elevator journeys are safe, each state’s Lifts Act was established. Among other regulations, lifts must be licenced, regularly maintained by the owner, followed by a lift inspector, and the certificate of safety must be posted within the lift. According to a news article published in the Times of India newspaper in May 2012, 8% of the elevators in Bangalore were not permitted. After a young man was fatally crushed in a residential complex lift in Greater Noida in July 2011, it was discovered that the Capital’s neighbouring cities of Noida and Greater Noida were blissfully exempt from any Lift Act.

BIS

Since there is no rule requiring amusement parks or water parks to follow any safety standards, there are many tales of terrible incidents there. The BIS merely provides instructions to amusement park operators and ride manufacturers. That is a significant error in a field where lives can be lost and frequently are.

Indian Railways Act, 1989

Commissioners are required by the Indian Railways Act of 1989 to check new lines, inventories, and warehouses, as well as any other element that can jeopardise the security of passengers.

Right to safety under transportation of hazardous materials

Due to increased worker mobility and the number of people working for many companies concurrently or back-to-back, special attention must be given to hazardous operations and employees in risky situations like migrant workers and other vulnerable categories of employees. Serious risks to safety, health, and the environment are posed by the growing use of chemicals, exposure to physical, chemical, and biological agents with unknown hazards, indiscriminate use of agrochemicals like pesticides and agricultural machinery, industries with high accident risks, the effects of computer-controlled technologies, and the alarming influence of stress at work in many modern jobs.

The main goal of the National Policy on Safety, Health, and the Environment at Work is to not only ensure that a high level of occupational safety, health, and environmental performance is achieved through proactive approaches and to eliminate the incidence of work-related illnesses, fatalities, disasters, and loss of national assets, but also to improve employee and societal well-being. Clear national goals and objectives will serve as the foundation for the coordinated national effort that will be used to make the essential improvements in this area. The government firmly believes that creating and upholding a national culture of preventative safety and health is essential. The following requirements must be met in order to create such a culture and enhance workplace health, safety, and the environment:

Establishing a legal framework for occupational safety and health in all areas of industrial activity, including the construction industry, and developing effective compliance monitoring, enforcement, and incentive programmes.
Delivering technical and administrative support services.
Giving employers and workers a system of incentives to meet greater health and safety requirements.
Establishing a system of non-monetary rewards for improvements in health and safety.
Building, expanding, and offering effective control methods for research and development in emerging risk sectors.
Putting greater emphasis on prevention tactics and tracking performance via an enhanced data gathering system for work-related illnesses and injuries.
At workplaces in many sectors, developing and providing the necessary technical people and expertise in the areas of safety, health, and the environment is crucial.
Encouraging other pertinent national policy papers to prioritise including improvements to worker health, safety, and the environment.
Making safety and occupational health a priority in every aspect of operations.

Right to safety under data protection laws in India

Additionally, no explicit data protection legislation has yet been passed in India. The Information Technology Act (2000) (IT Act) was modified by the Indian Congress to add Sections 43A and 72A, which grant a right to compensation for the incorrect disclosure of personal information.
According to Section 70B of the IT Act, certain types of cyber security incidents must be reported to the CERT-In by completing the necessary forms on the website. If certain cyber security incidents meet the following requirements, they must be notified by law within six hours:

Significant cyberattacks and cyber security incidents on any portion of the public information infrastructure, including the backbone network infrastructure (such as denial of service, distributed denial of service, intrusion, and the propagation of computer contaminants, including ransomware).
Data leaks or breaches.
Significant or frequent occurrences, such as hacking into websites or computer resources.
Cyber incidents impact the safety of human beings.

Maintenance of the right to privacy walks hand in hand with the right to safety. The only difference is that while the former is recognised, the latter isn’t expressly known. Although the prime legislation for data protection in India is the Information Technology Act, 2000, the aim behind the same and all other associated data protection rules promulgated by the legislature is to protect the privacy of individuals as the same has been given the status of fundamental rights in this democratic land.
In the data protection regime, the term ‘security’ is frequently used instead of ‘safety’. Both the terms being synonymous to each other, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were introduced by the Ministry of Electronics and Information Technology in an effort to strike a balance between private rights, public order and national security. Due diligence standards are outlined in these regulations, and the goal is to pinpoint the original source of all information shared on social media and messaging services. However, the content of electronic messages is not covered by this rule.
The RBI also acknowledged the rising lack of data privacy and security in the digital lending industry. The RBI formed a working group to evaluate the maturity of privacy standards put in place because the use of digital lending applications has increased exponentially. The working group concluded that data should only be stored on Indian servers.

What does India need to ensure proper implementation of the right to safety

As you can see, enough laws have been created to safeguard our right to safety, some of which have strong fangs while others are toothless. However, because of their poor execution, Indian consumers are significantly more at risk than those in wealthy economies. We need two things to make it work better:

A safety agency that is independent, such as the Consumer Product Safety Commission (CPSC) in the US, is dedicated to safeguarding American consumers from the danger of harm or death from the hundreds of items that fall within its purview. No one is beyond its grasp, thus the top brands in the world are frequently brought up.
The BIS needs to stop using the voluntary method since it is not beneficial to anyone. It is difficult to understand why the criteria are optional rather than being required, particularly in categories where there may be a life-threatening condition, such as elevator cabins or rides at amusement parks.

Conclusion

The urgent need to reduce morbidity and mortality is widely acknowledged, particularly in light of the fact that injuries are among the leading causes of years of life lost in the majority of developed nations. The relative contributions of powerful elites and organisational structures to the development of hazardous systems, the efficacy of strategies that emphasise technological fixes over behavioural change, the relative contributions of state and government interventions and those made by civil society organisations, and the necessity of enacting laws, setting standards, and making sure the police uphold them are all issues that supporters of the right to safety disagree on. Without a fundamental morality that gives the argument a solid foundation, it is exceedingly impossible to address these difficulties. We are generally underserved in our right to safety, whether we are citizens or consumers, and we live with a lot of uncertainty, leaving a lot to chance and fate. It is anticipated that current efforts to obtain agreement on a text outlining people’s rights to live lives free from harmful injury will assist in bridging ideological gaps and aligning priorities.

References

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